United States v. Williams , 208 F. App'x 228 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4817
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN A. WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
02-535)
Submitted: July 21, 2006 Decided: December 6, 2006
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John A. Williams, Appellant Pro Se. Gina Laurie Simms, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John A. Williams appeals his convictions and sentence on four
counts of making false statements to obtain federal employee
compensation, and aiding and abetting same, in violation of 18
U.S.C. §§ 2 and 1920; and four counts of filing false tax returns,
and aiding and abetting same, in violation of 18 U.S.C. § 2 and 26
U.S.C. § 7206(2). The district court sentenced Williams under the
then-mandatory Sentencing Guidelines — increasing his offense
level based on, inter alia, judicially determined findings of loss
— to forty months of imprisonment and three years of supervised
release. The court ordered Williams to make payment of restitution
to the United States Department of Labor/Office of Worker’s
Compensation Programs of $41,906 and to the Internal Revenue
Service of $102,527, and further ordered Williams to pay an $800
special statutory assessment. Following our recommendation in
United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), vacated,
543 U.S. 1097 (2005), the court also announced that if the
Sentencing Guidelines were determined to be unconstitutional, it
would nonetheless impose the same sentence.
On appeal, Williams contends he was erroneously sentenced
under a mandatory Guidelines scheme in violation of his Sixth
Amendment rights and United States v. Booker, 543 U.S. 220 (2005),
and that he has been improperly prohibited, as a condition of
supervised release, from incurring new credit charges or opening
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additional lines of credit without the approval of his probation
officer. Williams also challenges the search warrant of his home
as illegal, and asserts claims of ineffective assistance of
counsel, prosecutorial misconduct, and bias by the district judge.
As explained below, we affirm Williams’s convictions and sentence.
I.
A.
First, Williams relies on United States v. Booker to challenge
his sentence. In Booker, issued after Williams was sentenced, the
Supreme Court held that a sentencing court commits Sixth Amendment
error if it engages in judicial factfinding, under mandatory
Sentencing Guidelines, that results in a sentence exceeding the
maximum term authorized by the jury verdict alone. See 543 U.S. at
244-45.* Additionally, a sentencing court commits statutory error
if it treats the Guidelines as mandatory, rather than as advisory.
See id. at 245-46. Williams contends that the sentence imposed by
the district court violated his Sixth Amendment rights and was
further erroneous in that it was imposed pursuant to a mandatory
Guidelines scheme. Because Williams raised a challenge at
sentencing under Blakely v. Washington, 542 U.S. 296 (2004), he has
*
The Court remedied the constitutional violation by severing
two statutory provisions, 18 U.S.C. §§ 3553(b)(1) and 3742(e),
thereby rendering the Guidelines advisory. See United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005).
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preserved his constitutional and statutory Booker claims, and we
review these claims for harmless error. See United States v.
Rodriguez, 433 F.3d 411, 415-16 (4th Cir. 2006).
We agree with Williams that the district court committed
constitutional and statutory Booker errors in sentencing him.
Williams was sentenced under the mandatory Guidelines scheme and
received more than the maximum sentence permitted by the facts
found by the jury. However, because the court imposed an
identical, alternative sentence in the event that the Guidelines
were found to be non-binding, these errors were harmless. See
United States v. Shatley, 448 F.3d 264, 267 (4th Cir. 2006)
(concluding that constitutional Booker error was harmless where
“the district court announced an identical alternative sentence,
treating the Sentencing Guidelines as advisory”); Rodriguez, 433
F.3d at 416 (recognizing that statutory Booker error was not
harmless where “the court offered no indication of whether it might
have imposed a different sentence . . . under an advisory
Guidelines regime”). The court followed our recommendation in
Hammoud; its alternative sentence was within the range recommended
by the Sentencing Guidelines, and we take the court at its word
when it stated that it would impose the same sentence under an
advisory Guidelines system. See Shatley, 448 F.3d at 267-68.
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B.
Williams also contends that he has been improperly prohibited,
as a condition of supervised release, from incurring new credit
charges or opening additional lines of credit without the approval
of his probation officer. According to Brown, this condition will
jeopardize his ability to support himself post-incarceration as an
accountant and interfere with his ability to rely on credit to
cover the costs of treatment for his deteriorating health. We
review the imposition of special conditions of supervised release
for abuse of discretion. See United States v. Dotson, 324 F.3d
256, 259 (4th Cir. 2003). Although a sentencing court must impose
various statutorily required conditions of release, see 18 U.S.C.
§ 3583(d), it also enjoys substantial latitude to “impose any other
condition it considers to be appropriate, as long as that condition
is ‘reasonably related’ to statutory factors referred to in
§ 3583(d)(1).” Dotson, 324 F.3d at 260 (quoting § 3583(d)(1)).
Such factors include “the nature and circumstances of the offense
and the history and characteristics of the defendant.” 18 U.S.C.
§ 3553(a)(1). Additionally, a special condition must “involve[] no
greater deprivation of liberty than is reasonably necessary” to
achieve its intended purpose. § 3583(d)(2).
Williams’s presentence report recommended the special
condition at issue “to assist in monitoring his financial
circumstances,” as “[i]t is not likely he will be able to pay back
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much in restitution.” And indeed, Williams has been ordered to pay
restitution totaling more than $140,000 but, as the record
reflects, possesses limited financial resources. In these
circumstances, the special condition placed on Williams does not
constitute an abuse of discretion, especially in view of the fact
that, if a legitimate need arises, he may obtain permission from
his probation officer to incur new credit charges or open
additional lines of credit.
C.
Williams next challenges the legality of the search warrant of
his home, contending that the United States Post Office, his former
employer, should not have had the authority to obtain a search
warrant over him because he was retired. The record reflects that
agents of the U.S. Postal Inspection Service executed the search
warrant on May 31, 2002, and we have not been presented with any
support for the proposition that they were not authorized to do so
pursuant to their investigative powers under 18 U.S.C. § 3061.
D.
Finally, Williams asserts claims of ineffective assistance of
counsel, prosecutorial misconduct, and bias by the district judge.
Williams’s claims of ineffective assistance of counsel should be
brought by motion under 28 U.S.C. § 2255 in the district court, and
not on direct appeal, unless it “conclusively appears” from the
record that the defense counsel did not provide effective
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representation. See United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997); United States v. DeFusco, 949 F.2d 114, 120-21 (4th
Cir. 1991). Because it does not conclusively appear from the
record that defense counsel here was ineffective, we decline review
of this issue on direct appeal.
With respect to his claim of prosecutorial misconduct,
Williams asserts that the prosecutor had IRS agents obtain copies
of Williams’s witnesses’ income tax returns during trial and audit
them, resulting in five of his witnesses refusing to testify and
rendering the testimony of others “invalid” before the jury.
Williams presents no evidentiary support for this contention,
however, and we therefore find no merit to it. Furthermore,
Williams is not entitled to relief on his assertions that the
prosecutor withheld trial transcripts, preventing him from
preparing a more detailed appeal; that the sentencing transcript
that was sent to him was undated and had two court reporters’ names
on it, such that he cannot determine which one did the actual
reporting; and that the prosecutor “Allowed to be heard that she
was an expert on heart conditions, thereby influencing the jury on
her medical expertise.”
Lastly, Williams contends that bias by the district judge is
shown by, inter alia, the judge’s announcement that he would impose
the same sentence if the Sentencing Guidelines were deemed
unconstitutional, and the judge’s denial of Williams’s request for
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a medical release pending appeal. We find no basis in law or fact
for such a bias claim based on our review of the record on appeal,
and therefore find the claim to be without merit.
II.
Accordingly, we affirm Williams’s convictions and sentence.
We deny relief on his motions to remand, to authorize transcript at
government expense, for pro se writ of mandamus, for general
relief, for summary judgment, and to expedite appeal. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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