United States v. Williams , 434 F. App'x 241 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4582
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS LAMONT WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00056-WO-1)
Submitted: May 31, 2011 Decided: June 6, 2011
Before WILKINSON, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henry C. Su, HOWREY LLP, East Palo Alto, California, for
Appellant. Ripley Rand, United States Attorney, Randall S.
Galyon, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Lamont Williams pled guilty to possession with
intent to distribute 1,152.3 grams of N-Benzylpiperazine
(“BZP”), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
(2006), and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). He
received a 110-month sentence. On appeal, Williams argues his
sentence was procedurally unreasonable because his advisory
Guidelines range was not properly calculated. Specifically, he
maintains that the Guidelines range for BZP was erroneously
premised on BZP being a 3,4-Methylenedioxymethamphetamine
(“MDMA”) Mimic Drug and a Controlled Substance Analogue. In
fact, he claims recent case law and notices from the DEA suggest
that the most closely related controlled substance to BZP would
be amphetamine, but much less potent. Next, Williams argues his
sentence was procedurally unreasonable because the district
court failed to explain its reasons for denying his motion for a
downward variance. Last, although Williams acknowledges the
district court overruled his objection to a firearm enhancement
as moot, he raises it to preserve his objection. We affirm.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
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see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). A
sentence imposed within the properly calculated Guidelines range
is presumed reasonable by this court. United States v. Mendoza-
Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). In determining the
procedural reasonableness of a sentence, this court considers
whether the district court properly calculated the defendant’s
Guidelines range, treated the Guidelines as advisory, considered
the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments
presented by the parties, and sufficiently explained the
selected sentence. Gall, 552 U.S. at 51.
Williams first argues the district court erred in
relying on the presentence report (“PSR”), which converted BZP
to MDMA for purposes of establishing a Guidelines range. As
noted by the Government and conceded by Williams, Williams
initially raised this claim in a sentencing memorandum, but
withdrew the objection at sentencing. The Government posits
that this claim is waived in light of the withdrawal of the
objection. Williams counters that he is entitled to plain error
review for two reasons. First, he claims he was “pressured to
go along with his counsel’s decision to withdraw the objection
during sentencing.” Second, he maintains his counsel “failed to
render effective assistance with respect to the development and
presentation of this objection” and therefore he “should not be
bound by his counsel’s decision to withdraw the objection.”
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Generally, unpreserved errors in sentencing are
reviewed for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). However, a
defendant may waive appellate review of a sentencing error if he
raises and then knowingly withdraws an objection to the error
before the district court. See United States v. Horsfall, 552
F.3d 1275, 1283 (11th Cir. 2008) (finding that defendant’s
withdrawal of objection to sentence enhancement precluded
appellate review of enhancement); United States v. Rodriguez,
311 F.3d 435, 437 (1st Cir. 2002) (“A party who identifies an
issue, and then explicitly withdraws it, has waived the
issue.”); see also United States v. Chapman, 209 F. App’x 253,
268 n.4 (4th Cir. 2006) (No. 04-5010) (noting that “withdrawal
of [an] objection amounts to a waiver of any complaint . . . ,
precluding us from considering the issue even under plain error
review”) (argued but unpublished). An appellant is precluded
from challenging a waived issue on appeal. See Rodriguez, 311
F.3d at 437. Such a waiver is distinguishable “from a situation
in which a party fails to make a timely assertion of a right —
what courts typically call a ‘forfeiture,’” id. (quoting Olano,
507 U.S. at 733), which, as noted above, may be reviewed on
appeal for plain error. See Olano, 507 U.S. at 733-34.
Here, the record reflects that Williams initially
objected to the probation officer’s calculation of his
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Guidelines range based on BZP being treated as an MDMA analog.
However, during sentencing, Williams withdrew his objection.
Therefore, it is clear that Williams has waived this issue, and
this Court is precluded from considering it on appeal.
Williams argues that he was essentially pressured into
agreeing to the withdrawal of the objection and that counsel was
ineffective in developing the BZP/MDMA conversion objection and
in choosing to withdraw it. Claims of ineffective assistance
generally are not cognizable on direct appeal. United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for
adequate development of the record, a defendant must bring his
claim in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion. Id. An
exception exists where the record conclusively establishes
ineffective assistance. United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006).
To succeed on his claim, Williams must show that
(1) trial counsel’s performance was constitutionally deficient
and (2) such deficient performance was prejudicial.
Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). To
satisfy the performance prong, Williams must demonstrate that
trial counsel’s performance fell below an objective standard of
reasonableness under “prevailing professional norms.” Id. at
688. The prejudice prong is satisfied if Williams demonstrates
that “there is a reasonable probability that, but for [trial]
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counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. We conclude there is
no ineffective assistance conclusively appearing on the record.
See United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991)
(an ineffective assistance of counsel claim is best raised in a
§ 2255 motion so that counsel can be “afforded adequate
opportunity to explain the reasons surrounding the action of
inaction to which [petitioner] takes exception”) (internal
citations omitted).
To the extent that Williams argues he was pressured
into withdrawing the objection, his claim is belied by the
record. Initially, Williams filed a pro se objection to the
BZP/MDMA conversion. At sentencing, after counsel stated that
he was withdrawing the objection, Williams informed the court
that he was uncertain about the withdrawal. After the district
court afforded him a sixteen-minute recess to confer with
counsel, Williams informed the court that he had discussed the
issue with counsel, that he fully understood what was taking
place, and that he agreed with the withdrawal of the objection.
Under these circumstances, the record does not reflect undue
pressure. To the extent that Williams argues counsel pressured
him into withdrawing the objection, this claim too is better
raised in a § 2255 motion, where the record may be more fully
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developed to reflect the communications between Williams and
counsel.
Williams next claims his sentence is procedurally
unreasonable because the district court did not articulate
reasons for denying his motion for a downward variance to avoid
unwarranted sentencing disparities under 18 U.S.C. § 3553(a)(6)
(2006). Because Williams requested a sentence below the
Guidelines range, his claim was properly preserved, and this
court reviews it for reasonableness under an abuse of discretion
standard, reversing “unless . . . the error was harmless.”
Lynn, 592 F.3d 572 at 576, 578 (“By drawing arguments from
§ 3553 for a sentence different than the one ultimately imposed,
an aggrieved party sufficiently alerts the district court of its
responsibility to render an individualized explanation
addressing those arguments, and thus preserves its claim.”); cf.
United States v. Hernandez, 603 F.3d 267, 270 (4th Cir. 2010)
(reviewing claim of procedural unreasonableness for plain error
because defendant did not argue for a sentence different from
the sentence that he received).
At sentencing, Williams’ counsel advised that the
court start at 100 months and then vary downward based on the
other cases involving BZP. After reviewing the submitted
materials, the court stated it “really had a hard time comparing
things like criminal histories or nature and circumstances of
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the offense or all of the history and characteristics of the
defendant.” It further explained that, while the BZP cases from
other districts “may be some help in terms of evaluating the
seriousness of the offense, there are a lot of gaps in there
that make it difficult to do a direct comparison between the
sentences that are imposed.” Ultimately, the court denied the
variance, finding the use of the Guidelines calculation as
calculated was appropriate. We conclude the district court’s
explanation was sufficient. This court does not evaluate the
adequacy of the district court’s explanation “in a vacuum,” but
also considers “[t]he context surrounding a district court’s
explanation.” United States v. Montes-Pineda, 445 F.3d 375, 381
(4th Cir. 2006).
Accordingly, we affirm Williams’ sentence. * 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
*
Because Williams waived his argument as to the district
court’s calculation of the Guidelines range based on count two,
we conclude Williams’ argument pertaining to the firearm
enhancement imposed under the offense level computation for
count four is moot. See United States Sentencing Guidelines
Manual § 3D1.3(a) (2009) (instructing that the count producing
the highest adjusted offense level in the group is used to
determine the Guideline calculations for the group).
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