United States v. Roderick D. WIlliams , 246 F. App'x 626 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 30, 2007
No. 05-15184 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00197-CR-002
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODERICK D. WILLIAMS,
a.k.a. Rick Williams,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 30, 2007)
Before TJOFLAT, HULL and FAY, Circuit Judges.
PER CURIAM:
Following a jury trial, Roderick D. Williams was convicted of conspiracy to
possess with intent to distribute 50 kilograms or more but less than 100 kilograms
of marijuana and conspiracy to possess with intent to distribute 50 grams or more
but less than 500 grams of a mixture and substance containing a detectable amount
of methamphetamine, in violation of 21 U.S.C. § 846. The district court sentenced
Williams to 97 months’ imprisonment. Williams challenges his convictions on the
grounds that the district court constructively amended the indictment, the district
court erred in denying his motion to dismiss for selective prosecution, and the
district court abused its discretion in admitting evidence of a law enforcement
seizure of guns and drugs. He also contests his sentence, arguing that the district
court’s sentencing procedure violated the Fifth and Sixth Amendments and his
sentence was unreasonable. Williams also raises two ineffective assistance of
counsel claims. The government seeks to enforce Williams’s post-trial appeal
waiver. For the reasons set forth more fully below, we affirm.
I. Appeal waiver
In a post-trial cooperation agreement with the government, Williams waived
the right to appeal his conviction and sentence, with the following exceptions:
(1) any punishment imposed in excess of the statutory maximum; (2) any upward
departure from the Guideline range; and (3) a claim of ineffective assistance of
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counsel. We review de novo the question of whether a “defendant effectively –
that is knowingly and voluntarily – waived his right to appeal his sentence . . . .”
United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997) (citation
and quotation marks omitted). A “[w]aiver will be enforced if the government
demonstrates either: (1) the district court specifically questioned the defendant
about the waiver during the plea colloquy, or (2) the record clearly shows that the
defendant otherwise understood the full significance of the waiver.” Id. (emphasis
in original).
We conclude that the government has failed to make such a showing.
During the sentencing hearing, the district court did not discuss the specific terms
of Williams’s appeal waiver, at one point acknowledging that it did not recall the
specific content of the waiver. The district court’s comments that Williams
“waived certain of [his] rights,” “waive[d] some if not all of [his] rights to appeal
the sentence itself,” and “waived[d] certain of [his] appellate rights of [his]
sentence, the sentence itself, and maybe the conviction” were not specific
questioning regarding the appeal waiver. Nor does the record clearly show that
Williams otherwise understood the full significance of the waiver. Williams’s
acknowledgment in the written agreement regarding his understanding of and
voluntary entry into the agreement alone is insufficient to show that the waiver was
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knowing and voluntary. See United States v. Bushert, 997 F.2d 1343, 1352 (11th
Cir. 1993). At the sentencing hearing, Williams indicated that he did not
understand what the district court said about his right to appeal, and the district
court’s subsequent explanation of the appeal waiver did not discuss the specific
limitations on Williams’s right to appeal.1 Given Williams’s expressions of
confusion and the failure of the district court to ensure that Williams understood
the extent to which he was giving up his right to appeal, we hold that the
1
After the district court explained that Williams waived some of his rights, but that he
had a right to appeal, Williams personally addressed the court as follows:
THE DEFENDANT: Excuse me. I’m sorry.
THE COURT: That’s all right.
THE DEFENDANT: I didn’t understand what you just --
THE COURT: About the right to appeal?
THE DEFENDANT: Yes, ma’am.
THE COURT: You have a right to appeal your conviction. You also have a right
to appeal the sentence under certain circumstances.
THE DEFENDANT: Yes, ma’am.
THE COURT: However, you entered into an agreement that waives certain of
your appellate rights of your sentence, the sentence itself, and maybe the
conviction. I don’t recall what your agreement actually said. But those types of
waivers have generally been held to be enforceable by the appellate courts. But if
you believe it to be unenforceable, you can test that theory in the appellate court.
But you need to rely on the advice of your counsel in that regard.
THE DEFENDANT: Yes, ma’am.
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government has failed to establish that Williams’s waiver was knowing and
voluntary.
II. Selective prosecution
Williams’s race-based selective prosecution challenge is based upon the
government’s treatment of Shane Godwin, who Williams contends was indicted as
a result of his selective prosecution claim. Williams contends that Godwin was
similarly situated because he had equal or greater involvement in the conspiracy,
but was indicted for possession with intent to distribute methamphetamine and not
for conspiracy.
In reviewing the denial of a motion to dismiss for selective prosecution, we
review the district court’s factual findings for clear error and its legal conclusions
de novo. United States v. Smith, 231 F.3d 800, 806 (11th Cir. 2000). Where
selective prosecution is based on race, the defendant must establish, by clear and
convincing evidence, that similarly situated individuals of a different race were not
prosecuted for the type of conduct with which the defendant has been charged and
that the selective prosecution was motivated by a discriminatory purpose. Id. at
808-09; United States v. Burton, 871 F.2d 1566, 1574 n.3 (11th Cir. 1989).
[A] “similarly situated” person for selective prosecution purposes [is]
one who engaged in the same type of conduct, which means that the
comparator committed the same basic crime in substantially the same
manner as the defendant–so that any prosecution of that individual
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would have the same deterrence value and would be related in the
same way to the Government’s enforcement priorities and
enforcement plan–and against whom the evidence was as strong or
stronger than that against the defendant.
Smith, 231 F.3d at 810.
[A] defendant fails to satisfy the “similarly situated” prong of the
selective prosecution defense when those not prosecuted cooperated
with the government, or were lower in the organizational structure of
the conspiracy than those prosecuted, and when the defendant offers
nothing but bare general allegations that the selectivity was motivated
by racial considerations.
United States v. Silien, 825 F.2d 320, 322 (11th Cir. 1987).
Godwin was not prosecuted for the type of conduct – methamphetamine
conspiracy – for which Williams was charged. In support of his motion to
dismiss, Williams relied upon a bare allegation that Godwin was involved in the
conspiracy, offering no evidence in support of his contention. The government,
however, responded with evidence that Williams’s role in the conspiracy, as a drug
supplier, was higher in the organization than Godwin. The government’s evidence
is consistent with evidence in the record on appeal. Based on evidence that
Williams supplied multiple people with marijuana and methamphetamine, while
Godwin was an occasional purchaser of methamphetamine from a middle-man
between himself and Williams, we hold that the district court did not err in finding
that Godwin was not similarly situated. See Smith, 231 F.3d at 812 (“The
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government can legitimately place a higher priority on prosecuting someone who
commits an offense three, six or seven times, than someone who commits an
offense once or twice, especially when the offense is a non-violent one. Likewise,
the willingness of a jury to convict a defendant of a crime may increase with the
number of times that defendant has committed the crime.”).
III. Constructive amendment of the indictment
The district court instructed the jury on the elements of the conspiracy
charges, and informed the jury that, if they found Williams guilty on either count,
they would have to determine the amounts of marijuana and of a mixture and
substance containing methamphetamine involved in the offense. The court further
instructed the jury that:
after you’ve considered both of those counts, there’s a second page to
this verdict form, and it says: “If and only if you find the defendant
guilty as charged in either or both counts two and/or three of the
indictment, you must also determine if the defendant possessed with
intent to distribute cocaine and pure methamphetamine, also known as
crystal meth or ice. If you find the defendant did possess with intent to
distribute either or both of these two controlled substances, you must
also determine the amount of the substance involved.”
During deliberations, the jury requested a clarification of possession with
respect to this portion of the verdict form. In response, the district court referred
the jury to the instructions on possession and possession with intent to distribute.
Williams contends that the district court’s response to the jury’s question permitted
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a verdict of guilty based on the finding that he possessed with intent to distribute
methamphetamine instead of based on the conspiracy charges, thereby
constructively amending the indictment.
A constructive amendment of the indictment is per se reversible error.
United States v. Flynt, 15 F.3d 1002, 1005 (11th Cir. 1994). However, because
Williams raised no objection on this ground before the district court, we review his
claim for plain error. Id. at 1006. “A constructive amendment to the indictment
occurs where the jury instructions so modify the elements of the offense charged
that the defendant may have been convicted on a ground not alleged by the
indictment.” United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002)
(citation and quotation marks omitted). “In determining whether an indictment
was constructively amended, we must assess . . . the court’s instructions ‘in
context’ to see whether the indictment was expanded either literally or in effect.”
United States v. Castro, 89 F.3d 1443, 1453 (11th Cir. 1996).
The jury initially was instructed on the two conspiracy charges in the case
and then informed that, only if they found Williams guilty on at least one of those
charges could they consider whether he possessed with intent to distribute cocaine
and pure methamphetamine. The district court’s response to the jury’s question
did not alter its earlier instruction to consider these drugs only after finding
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Williams guilty of at least one of the conspiracy charges. Therefore, neither the
verdict form nor the district court’s response to the jury’s question allowed the jury
to find Williams guilty of a substantive possession charge instead of the charged
conspiracies, and there was no constructive amendment of the indictment.
IV. Admission of evidence
The evidence at trial revealed that Williams sold marijuana and
methamphetamine to Damien Mosley. At trial, Mosley testified that he observed
people deliver drugs to Williams which Williams ultimately gave him. As to one
of these deliveries, Mosley testified that he and Williams went to a trailer in
Atlanta where he saw about three “Mexicans” as well as a large bale of marijuana
and lots of guns on the bed. At the trailer, he and Williams obtained about ten
pounds of marijuana. Mosley further testified that Williams told him that, the day
after they had gone to the trailer, the task force came to the trailer and made arrests.
The district court permitted the government to introduce evidence of a raid of that
trailer by law enforcement. The district court allowed the government to elicit the
testimony regarding the guns seized during the raid, but denied admitting the
photograph of the weapons. The district court allowed the admission of the
photograph of the drugs, noting that the evidence was corroborative.
During Mosley’s testimony, he identified a photograph as the trailer where
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he and Williams received the drugs. Scott Oliver, a law enforcement officer with
the City of Atlanta police department, identified the same photograph as the
location of an August 8, 2003 search in which he participated. Oliver testified that
three Mexican males were arrested and officers seized 7.5 pounds of
methamphetamine, 10 pounds of marijuana, $20,000, and approximately 25 assault
weapons. During Oliver’s testimony, the government introduced one photograph
picturing the drugs and currency seized from the trailer.
Williams argues that the district court erred in allowing the government to
introduce the evidence of the raid under Fed.R.Evid. 404(b). Williams contends
that the evidence was irrelevant, not related to the charged conspiracy, temporally
and geographically remote, and more prejudicial than probative. We review the
district court’s evidentiary rulings for abuse of discretion. United States v.
Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006), cert. denied, 127 S.Ct. 1305 (2007).
Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident . . . .” Fed.R.Evid. 404(b).
[E]vidence of criminal activity other than the charged offense is not
extrinsic under Rule 404(b), and thus falls outside the scope of the
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Rule, when it is (1) an uncharged offense which arose out of the same
transaction or series of transactions as the charged offense,
(2) necessary to complete the story of the crime, or (3) inextricably
intertwined with the evidence regarding the charged offense.
Evidence, not part of the crime charged but pertaining to the chain of
events explaining the context, motive[,] and set-up of the crime, is
properly admitted if linked in time and circumstances with the
charged crime, or forms an integral and natural part of an account of
the crime, or is necessary to complete the story of the crime for the
jury. And evidence is inextricably intertwined with the evidence
regarding the charged offense if it forms an integral and natural part of
the witness’s accounts of the circumstances surrounding the offenses
for which the defendant was indicted. Nonetheless, evidence of
criminal activity other than the charged offense, whether inside or
outside the scope of Rule 404(b), must still satisfy the requirements of
Rule 403.
United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (citations,
quotation marks, and emphasis omitted) (second alteration in original).
“Mere corroboration of testimony . . . fails to justify the introduction of
unrelated bad acts.” United States v. Lehder-Rivas, 955 F.2d 1510, 1518 (11th Cir.
1992) (holding that, “[b]ecause Lehder’s method of labeling his cocaine packages
was not critical to the prosecution’s establishment of a conspiracy, the district court
abused its discretion by admitting this highly prejudicial evidence.”). In this case,
there is evidence of a relationship between the seizure and the charged marijuana
conspiracy, as the August 2003 raid and seizure at the trailer took place during the
course of the charged conspiracy and involved a source of Williams’s supply of
marijuana. Evidence of the seizure corroborated Mosley’s testimony, making it
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more likely that Williams obtained marijuana from the people in the trailer. In
addition, the prejudicial effect of the evidence is minimized because Oliver
testified that Williams was not involved in the raid. The admission of this
evidence did not amount to an abuse of discretion.
V. Sentence enhancements
The jury found that Williams conspired to possess with intent to distribute
50 kilograms or more but less than 100 kilograms of marijuana and conspired to
possess with intent to distribute 50 grams or more but less than 500 grams of a
mixture and substance containing a detectable amount of methamphetamine. The
jury determined that Williams possessed with intent to distribute 36 grams of
crystal methamphetamine but did not possess with intent to distribute cocaine. The
presentence investigation report (“PSI”) assigned Williams a base offense level of
32, holding him accountable for 1,166 kilograms of marijuana. To calculate this
total, the probation officer relied on the drug quantities found by the jury and
converted the methamphetamine into its marijuana equivalency, specifically:
(1) using the minimum 50 kilograms of marijuana, (2) finding that the evidence
supported Williams’s involvement in at least 198 grams of methamphetamine,
which was within the 50 to 500-gram range found by the jury, and which converted
to 396 kilograms of marijuana; and (3) converting the 36 grams of crystal
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methamphetamine into 720 kilograms of marijuana. No enhancements were
applied to Williams’s offense level and he received a two-level safety valve
reduction, for a total offense level of 30.
On appeal, Williams argues that the use of the 36 grams of crystal
methamphetamine at sentencing violated the Fifth Amendment’s grand jury right
because these facts were not charged in the indictment. Williams also argues that,
pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403(2004) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621(2005), he could only be sentenced at his base offense level and not based on facts
which were neither found by a jury, stipulated to in a plea agreement, or not the
subject of a knowing and intelligent waiver.
Because Williams did not raise these arguments before the district court, we
review his claims for plain error. See United States v. Rodriguez, 398 F.3d 1291,
1298 (11th Cir.), cert. denied, 545 U.S. 1127 (2005). Under this standard of
review, there must be (1) an error, (2) that is plain, and (3) that affects substantial
rights. Id. If these three conditions are met, we may notice the error only if “the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citation and quotation marks omitted).
Williams’s methamphetamine conspiracy conviction carried a 40-year (480-
13
month) statutory maximum and his marijuana conspiracy conviction carried a 20-
year (240-month) statutory maximum. See 21 U.S.C. §§ 841(b)(1), 846. Williams
was sentenced to 97 months’ imprisonment under the advisory Guidelines. The
district court submitted the question of the amount of pure methamphetamine to
the jury for the purpose of determining the applicable quantity for its Sentencing
Guidelines calculations. The court did not find facts regarding the drug quantities
beyond those found by the jury and Williams’s sentence did not exceed the
applicable statutory maximums. The district court’s sentencing procedure,
therefore, did not violate either Williams’s Fifth or Sixth Amendment rights. See
Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 1223, 140
L.Ed.2d 350 (1998) (“An indictment must set forth each element of the crime that
it charges. But it need not set forth factors relevant only to the sentencing of an
offender found guilty of the charged crime.”) (citation omitted); Odili v. U.S.
Parole Comm’n, 474 F.3d 1255, 1263 (11th Cir. 2007) (holding that Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) was not
violated where the sentence did not exceed the applicable statutory maximum);
United States v. Thomas, 446 F.3d 1348, 1355 (11th Cir. 2006) (holding that
where the defendant’s sentence does not exceed the statutory maximum and the
district court applies the Guidelines as advisory, the district court does not err by
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enhancing the defendant’s sentence based on facts not charged in the indictment or
admitted by him); United States v. Dulcio, 441 F.3d 1269, 1277 (11th Cir. 2006)
(holding that there was no constitutional Booker error because the defendant’s
sentence was enhanced solely based on the 19 kilograms of cocaine found by the
jury at trial); United States v. Gibson, 434 F.3d 1234, 1250 n.30 (11th Cir.), cert.
denied, 126 S.Ct. 2911 (2006) (noting that the application of U.S.S.G. § 4B1.1
would not violate the Fifth Amendment because it would not exceed the applicable
statutory maximum under the U.S. Code). Moreover, by failing to object to the
drug quantities used in the PSI, Williams admitted these facts. See United States v.
Williams, 438 F.3d 1272, 1274 (11th Cir.), cert. denied, 127 S.Ct. 195 (2006)
(holding that the failure to contest drug amount in the PSI constitutes an admission
of that quantity).
VI. Reasonableness
Williams’s challenge to the reasonableness of his 97-month sentence is
based upon the 30-month sentence received by his codefendant, which he relies
upon to argue that his sentence creates a risk of significant sentencing disparities
between courts and is otherwise unnecessarily severe.
We review the final sentence imposed by the district court for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).
15
Our review for reasonableness is deferential. Thomas, 446 F.3d at 1351. When
reviewing a sentence for reasonableness, we consider the factors outlined in 18
U.S.C. § 3553(a) and the district court’s reasons for imposing the particular
sentence. United States v. Williams, 456 F.3d 1353, 1360-61 (11th Cir. 2006),
cert. dismissed, (U.S. June 28, 2007) (No. 06-7352). The § 3553(a) factors take
into account:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
Williams’s sentence was at the low end of his 97 to 121-month Guideline
range, and was the sentence Williams, through counsel, requested at the sentencing
hearing. Williams’s codefendant pleaded guilty and testified against Williams at
Williams’s trial. Williams’s reliance on the length of his codefendant’s sentence,
in and of itself, fails to convince us that his sentence was unreasonable.
VII. Ineffective assistance of counsel
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Williams raises two ineffective assistance of counsel claims on appeal. As
to Williams’s first claim, it is unclear whether he claims that counsel was
ineffective for failing to object on the ground that Oliver was not on the
government’s witness list or was ineffective for failing to request that the
government produce its witness list and evidence against Williams. Williams also
argues that counsel was ineffective for failing to object on the ground that the
verdict form constituted a constructive amendment of the indictment because it
charged him with possession with intent to distribute crystal methamphetamine.
Generally, we do not review a claim of ineffective assistance of counsel
raised on direct appeal when the district court did not entertain the claim or
develop a factual record. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.
2002). “If the record is sufficiently developed, however, [we] will consider an
ineffective assistance of counsel claim on direct appeal.” Id. We review such a
claim de novo. Id. We will not consider Williams’s first claim on direct appeal.
However, given our earlier holding that there was no constructive amendment of
the indictment where the district court instructed the jury to determine whether and
to what extent Williams possessed with intent to distribute crystal
methamphetamine, we reject Williams’s claim that trial counsel was ineffective for
failing to object on this ground. See Lucas v. Wainwright, 604 F.2d 373, 375 (5th
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Cir. 1979) (holding that, where jury has been properly instructed, counsel is not
ineffective for failing to object to an instruction).
In light of the foregoing, Williams’s convictions and sentence are
AFFIRMED.
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