United States v. Williams , 282 F. App'x 119 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-17-2008
USA v. Williams
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2334
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2334
UNITED STATES OF AMERICA
v.
WAYNE STEPHEN WILLIAMS,
Appellant
On Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal No. 05-cr-00017)
District Judge: Hon. Sue L. Robinson
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 6, 2008
BEFORE: AMBRO, CHAGARES and COWEN, Circuit Judges
(Filed: June 17, 2008)
OPINION
COWEN, Circuit Judge.
In 2005, Wayne Stephen Williams pled guilty to Count I of a three count
indictment which charged that he “did knowingly possess with intent to distribute more
than fifty (50) grams of a mixture and substance containing a detectable amount of
cocaine base . . . in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A).” (App. 26.) In
October 2005, the District Court sentenced Williams to 151 months imprisonment, to be
followed by five years of supervised release. On appeal, we vacated that sentence in light
of our decision in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), and remanded the
matter for resentencing. See United States v. Williams, 201 F. Appx. 125 (3d Cir. 2006)
(not precedential).
On remand, Williams requested that the District Court sentence him below the
advisory sentencing guideline range of 151-188 months imprisonment. He requested a
sentence of 120 months imprisonment (the mandatory minimum sentence). In April
2007, the District Court departed from the advisory guideline range, and sentenced
Williams to 135 months imprisonment, to be followed by five years of supervised release.
In arriving at this sentence, the District Court noted that the sentence was based not only
on the crack/cocaine disparity in sentences, but also on other factors, including Williams’
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post-conviction rehabilitation efforts.
Williams filed a timely notice of appeal. On appeal, Williams’ counsel filed a
motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). Williams did
not file a pro se brief in response to the Anders motion, even though he was given the
opportunity to do so. After reviewing counsel’s Anders brief, we will deny the Anders
motion and remand the matter to the District Court for further proceedings.
II.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). Where counsel files an Anders motion, our inquiry is twofold: (1) whether
counsel adequately fulfilled the Anders requirements, and (2) whether an independent
review of the record presents any nonfrivolous issues. See United States v. Youla, 241
F.3d 296, 300 (3d Cir. 2001).
III.
To adequately fulfill the Anders requirements, counsel’s brief must “satisfy the
court that counsel has thoroughly examined the record in search of appealable issues, and
. . . explain[ed] why the issues are frivolous.” Youla, 241 F.3d at 300 (citing United
States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000)). Counsel must engage in a
conscientious examination of the case. See id.
Counsel’s Anders brief included a detailed analysis of the reasonableness of the
135 month sentence. To prevail on appeal, Williams must show that his sentence was
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unreasonable. See United States v. Olfano, 503 F.3d 240, 244 (3d Cir. 2007). Here, the
District Court analyzed the 18 U.S.C. § 3553(a) factors, and sentenced Williams below
the advisory guideline range. It specifically noted not only the disparity in crack/cocaine
sentences, but also Williams’ post-conviction rehabilitation efforts. Williams failed to
show that the sentence was unreasonable.
Nevertheless, based on circumstances arising after the parties filed their appellate
briefs, we will remand the matter to the District Court for further proceedings. As
previously noted, the second prong of our Anders inquiry requires us to conduct an
independent review of the record for any nonfrivolous issues. Williams was sentenced in
April 2007. While the sentencing guidelines are no longer mandatory, 18 U.S.C.
§ 3553(a)(4) directs the District Court to consider the guidelines that are in effect at the
time of sentencing in arriving at an appropriate sentence. Thus, “we will continue to
expect that district courts will calculate the applicable sentencing ranges using the
Guidelines extant at the time of sentencing, and we will continue to review the propriety
of a sentence based on those same Guidelines.” See United States v. Wise, 515 F.3d 207,
220 (3d Cir. 2008). On review, there are two exceptions to this rule. See id. The first
exception is applicable if applying the version of the guidelines in effect on the date of
sentencing presents an ex post facto problem. See id. (citing United States v. Menon, 24
F.3d 550, 556 (3d Cir. 1994)). This exception is not implicated in this case.
The second exception is applicable if a subsequent guideline amendment merely
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clarifies the law in existence at the time of sentencing as opposed to working a
substantive change of law. See id. (citing United States v. Diaz, 245 F.3d 294, 301 (3d
Cir. 2001)). On November 1, 2007, the Sentencing Commission adopted amendment 706
to the advisory guidelines. “In general, the effect of Amendment 706 is to decrease by
two levels the base offense levels for crack cocaine offenses.” Wise, 515 F.3d at 219
(citing U.S.S.G. § 2D1.1 (Nov. 1, 2007); U.S.S.G. Supp. to App’x C, Amend. 706)).
Amendment 706 became retroactive as of March 3, 2008. See U.S.S.G. § 1B1.10(c)
(Supp. May 1, 2008). Nevertheless, “we have previously ruled that a post-sentencing
amendment reducing the base offense level applicable to a particular offense is a
substantive change and is therefore not applied retroactively to cases on appeal.”
See Wise, 515 F.3d at 220 (citing United States v. Marcello, 13 F.3d 752, 756 (3d Cir.
1994). Accordingly, the second exception is also not implicated by this appeal.
However, this does not end our inquiry for purposes of deciding counsel’s Anders
motion. In Wise, we noted that the appellants could possibly obtain some benefit from
amendment 706 by filing a 18 U.S.C. § 3582(c)(2) motion in the District Court after
amendment 706 became retroactive on March 3, 2008. See 515 F.3d at 220-21. Section
3582(c)(2) provides an exception to the general rule that a District Court cannot alter a
term of imprisonment once it has been imposed; specifically, it states that:
in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission
pursuant to 28 U.S.C. § 994(o), upon motion of the defendant
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or the Director of the Bureau of Prisons, or on its own motion,
the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the
extent they are applicable, if such a reduction is consistent
with applicable policy statements issued by the Sentencing
Commission.
Id. The statutory provision contemplates that a defendant should petition the District
Court for a sentence modification. See, e.g., United States v. Gunter, – F.3d –, 2008 WL
2331384, at *5 n.3 (3d Cir. June 9, 2008); see also United States v. Brewer, 520 F.3d 367,
373 (4th Cir. 2008) (declining to remand the matter to the District Court, but noting that
its decision is without prejudice so that the appellant can pursue a § 3582(c)(2) motion in
the District Court). However, where an appellant raises this issue on appeal, there is no
need to force him to take the additional step of filing a § 3582(c)(2) motion in the District
Court. See Marcello, 13 F.3d at 756 n.3; see also United States v. Whiting, 522 F.3d 845,
853 (8th Cir. 2008) (“Where an amendment to the guidelines becomes retroactive during
the appellate proceedings on a case, it may be remanded to the district court for a
determination of whether the amendment warrants a sentence reduction.”).
We must complete an independent review of the record in this case in light of the
Anders motion. Williams’ counsel could have argued that the case should be remanded
so that the District Court can consider whether to reduce the sentence based on the
amended advisory sentencing guideline range and § 3582(c)(2).1 Whether the sentence
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Williams’ counsel contemplated that the sentencing guidelines would be amended,
and that the amendment would become retroactive. Counsel asserted that this would not
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should be reduced in light of amendment 706 is an arguable issue, but one that is
appropriate for the District Court to consider in the first instance. See United States v.
Vasquez, 53 F.3d 1216, 1228 (11th Cir. 1995).
IV.
For the reasons outlined above, we will deny the Anders motion. The matter is
remanded to the District Court so that it can consider whether to reduce Williams’
sentence pursuant to 18 U.S.C. § 3582(c)(2). We express no opinion on whether the
District Court should reduce the sentence in light of the amendment to the advisory
sentencing guidelines range.
affect the reasonableness of the sentence because even if the amendment became
retroactive (which it now is), Williams’ sentence of 135 months was within the new
advisory guideline range of 121-151 months. However, based on the fact that an
appellant can raise a § 3582(c)(2) issue on appeal in requesting the matter be remanded,
see Marcello, 13 F.3d at 756 n.3, this is a nonfrivolous issue that could have been raised
by counsel in Williams’ appellate brief.
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