United States v. Williams ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4418
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JONATHAN CARNELL WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
99-346-PJM)
Submitted: August 22, 2005 Decided: October 6, 2005
Before LUTTIG and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Idus J. Daniel, Jr., LAW OFFICE OF IDUS DANIEL, Washington, D.C.,
for Appellant. Thomas M. DiBiagio, United States Attorney, Bryan
E. Foreman, Assistant United States Attorney, Greenbelt, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jonathan Carnell Williams was charged with one count of
possession with intent to distribute five grams or more of cocaine
base, commonly known as crack, on July 14, 1999 (Count One);
possession with intent to distribute 50 grams or more of cocaine
base on July 15, 1999 (Count Two), possession with intent to
distribute marijuana (Count Three), knowing possession of a firearm
with an altered or obliterated serial number (Count Four), and
possession of a firearm by a convicted felon (Count Five). At the
close of the Government’s evidence, the district court granted
Williams’ motion to dismiss for lack of evidence the charge
regarding a firearm with an altered or obliterated serial number
(Count Four). The court also reduced Count Three to simple
possession of marijuana. The jury acquitted Williams of all counts
with the exception of Count One. On appeal, Williams contends the
following: (1) his sentence, based in part on facts from the
dismissed and acquitted counts, violates the rules announced in
United States v. Booker, 125 S. Ct. 738 (2005), and Blakely v.
Washington, 542 U.S. 296 (2004); (2) 21 U.S.C. § 841 (2000) is
unconstitutional as a result of Apprendi v. New Jersey, 530 U.S.
466 (2000); (3) Section 841 is void for vagueness; (4) the evidence
was insufficient to establish that the seized contraband was crack
cocaine; and (5) the district court abused its discretion admitting
the contraband as evidence because a link in the chain of custody
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was not established. While we affirm the conviction, we find the
sentence violates the rules announced in Booker and Blakely.
The evidence at trial established that law enforcement
authorities arrested Williams as he was about to transact a drug
sale. Seized from his person were two small baggies containing
cocaine base. Williams contends § 841 is unconstitutional in light
of Apprendi because the penalty provision cannot be severed from
the rest of the statute. Because Williams did not raise this
challenge in the district court, this claim is reviewed for plain
error. United States v. Olano, 507 U.S. 725, 732-37 (1993)
(unpreserved error may be corrected only if error occurred, that
was plain, and that affects substantial rights, and failure to
correct error would seriously affect the fairness, integrity, or
public reputation of judicial proceedings); United States v.
McAllister, 272 F.3d 228, 230-31 (4th Cir. 2001).
Williams relies on United States v. Buckland, 259 F.3d
1157 (9th Cir. 2001) (“Buckland I”) for the proposition that the
penalty provisions of § 841 are facially unconstitutional.
However, this case was overruled in United States v. Buckland, 289
F.3d 558 (9th Cir. 2002). We find the claim is without merit
because this court has held that § 841 is not facially
unconstitutional. McAllister, 272 F.3d at 232-33. In addition,
this court specifically rejected the holding in Buckland I.
Recently, this court again rejected this argument, noting the issue
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is foreclosed by McAllister. United States v. Collins, 415 F.3d
304, __, 2005 WL 1621100, *6 (4th Cir. 2005).
Williams also contends § 841 is void for vagueness
because the statute does not define cocaine base. In addition,
while Williams notes this court held cocaine base includes crack,
that was under a lesser fair notice standard, citing United
States v. Pinto, 905 F.2d 47 (4th Cir. 1990). Because this issue
was not raised below, review is for plain error. Olano, 507 U.S.
at 732-37.
In Pinto, this court held the term cocaine base includes
crack cocaine. This court further noted that the fact that cocaine
base was undefined in the statute was of no matter because it
applied only to what were then the sentencing provisions of § 841.
“As such, the notice required to satisfy due process is less
rigorous than that applied to substantive provisions.” Id., 905
F.2d at 50. In order for Williams to show plain error, he must
establish the error is clear and obvious. Olano, 507 U.S. at 734,
United States v. White, 405 F.3d 208, 217 (4th Cir. 2005). We note
Pinto does not stand for the proposition that under a heightened
fair notice standard, cocaine base does not necessarily include
crack. Because the holding in Pinto remains valid, Williams has
not established the alleged error is clear and obvious.
Accordingly, he cannot establish plain error.
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Williams contends there was insufficient evidence to
support the finding that the substance seized from his person and
his home was crack cocaine. Although Williams moved for a judgment
of acquittal on Count One, he moved only on the basis that the
chain of custody with respect to the seized contraband was not
established. Thus, review is for plain error. We find Williams
failed to establish plain error. In Pinto, this court held that
cocaine base includes crack cocaine. Id., 905 F.2d at 50. There
is no doubt that the chemist’s testimony at trial provided
sufficient evidence to support the finding that the seized
substances contained cocaine base. It is not clear or obvious that
the evidence was insufficient to establish the presence of crack
cocaine.
Williams also contends the crack seized from his person
on July 14, 1999, was improperly admitted into evidence because
there was a missing link with respect to the chain of custody.
Under Fed. R. Evid. 901, the admission of an exhibit must
be preceded by “evidence sufficient to support a finding that the
matter in question is what its proponent claims.” This showing is
satisfied by “sufficient proof that the evidence is what it
purports to be and has not been altered in any material respect,”
and is not intended as an “iron-clad” rule that requires exclusion
of real evidence based on a missing link in its custody. United
States v. Ricco, 52 F.3d 58, 61-62 (4th Cir. 1995). The ultimate
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question focuses on “whether the authentication testimony was
sufficiently complete so as to convince the court that it is
improbable that the original item had been exchanged with another
or otherwise tampered with.” United States v. Howard-Arias, 679
F.2d 363, 366 (4th Cir. 1982). Resolution of a chain of custody
question rests with the sound discretion of the trial judge.
Ricco, 52 F.3d at 61. In the instant case, we find the court did
not abuse its discretion admitting the seized contraband. See,
e.g., Howard-Arias, 679 F.2d at 365-66 (all members of the chain of
custody testified except for a DEA agent who transferred the
contraband from one location to another).
Finally, Williams attacks his sentence because the
enhancements were based on evidence that supported the charges of
which Williams was acquitted or which were dismissed. At
sentencing, Williams was found responsible for at least 50 grams
but less than 150 grams of crack cocaine and assigned a base
offense level of 32. His base offense level was increased by 2 for
possession of a weapon. The facts supporting these enhancements
were not found by the jury beyond a reasonable doubt or admitted by
Williams. Williams argued unsuccessfully that under Apprendi, the
offense level should not be enhanced as a result of the evidence
supporting the acquitted charges. Because Williams was in criminal
history category VI, his sentencing range was 262 to 327 months’
imprisonment. He was sentenced to 262 months’ imprisonment.
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In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that the mandatory manner in which the federal
sentencing guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
of the evidence violated the Sixth Amendment. Id. at 746, 750(Stevens, J., opinion of the Court). The Court remedied the
constitutional violation by severing two statutory provisions, 18
U.S.C.A. § 3553(b)(1) (West Supp. 2005) (requiring sentencing
courts to impose a sentence within the applicable guideline range),
and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth
appellate standards of review for guideline issues), thereby making
the guidelines advisory. United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005) (citing Booker, 125 S. Ct. at 756-67 (Breyer,
J., opinion of the Court)).
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a),
and impose a sentence. If a court imposes a sentence outside the
guideline range, the district court must state its reasons for
doing so. Hughes, 401 F.3d at 546. This remedial scheme applies
to any sentence imposed under the mandatory guidelines, regardless
of whether the sentence violates the Sixth Amendment. Id. at 547
(citing Booker, 125 S. Ct. at 769 (Breyer, J., opinion of the
Court)).
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Here, the district court sentenced Williams under the
mandatory federal sentencing guidelines and established a base
offense level based in part on acquitted conduct and not admitted
by Williams. Without the enhancements for the drugs or firearms,
Williams’ offense level would have been 26. See U.S. Sentencing
Guidelines Manual § 2D1.1(c)(7) (providing for base offense level
of thirty-two for offenses involving at least 5 grams but less than
20 grams of crack). Assuming a criminal history category of VI,
Williams’ guideline range would have been 120 to 150 months’
imprisonment. USSG Ch. 5, Pt. A (Sentencing Table). Because the
guideline range is less than the 262-month sentence Williams
received, we find the sentence violates the Sixth Amendment.1 2
In light of Booker, we vacate Williams’ sentence and
remand the case for resentencing. Although the sentencing
guidelines are no longer mandatory, Booker makes clear that a
sentencing court must still “consult [the] Guidelines and take
1
Williams’ claim regarding the calculation of his criminal
history category is without merit. In Almendarez-Torres v. United
States, 523 U.S. 224 (1998), the Supreme Court held that the
government need not allege in its indictment and need not prove
beyond reasonable doubt that a defendant had prior convictions for
a district court to use those convictions for purposes of enhancing
a sentence. We have confirmed that Almendarez-Torres was not
overruled by Apprendi, and remains the law. United States v.
Cheek, 415 F.3d 349, , 2005 WL 1669398, *3 (4th Cir. 2005).
2
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Williams’ sentencing.
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them into account when sentencing.” 125 S. Ct. at 767. On remand,
the district court should first determine the appropriate
sentencing range under the Guidelines, making all factual findings
appropriate for that determination. See Hughes, 401 F.3d at 546(applying Booker on plain error review). The court should consider
this sentencing range along with the other factors described in
§ 3553, and then impose a sentence. Id. If that sentence falls
outside the Guidelines range, the court should explain its reasons
for the departure as required by § 3553(c)(2). Id. The sentence
must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 546-47.
Accordingly, we affirm the conviction and vacate the
sentence and remand to the district court for resentencing
consistent with the rules announced in Booker and Hughes. 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 IN PART; VACATED
AND REMANDED IN PART
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