United States v. Williams , 83 F. App'x 514 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4188
TROY WILLIAMS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-02-110)
Submitted: November 21, 2003
Decided: December 15, 2003
Before TRAXLER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Tracy Weese, Shepherdstown, West Virginia, for Appellant. Kasey
Warner, United States Attorney, R. Gregory McVey, Assistant United
States Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WILLIAMS
OPINION
PER CURIAM:
Troy Williams was convicted after a bench trial of conspiracy to
distribute cocaine base and distribution of cocaine base. Following
trial, the Probation Office recommended finding that Williams was a
career offender under U.S. Sentencing Guidelines Manual § 4B1.1(a)
(2000), based on two prior felony drug convictions. Williams
objected, asserting that his prior convictions were related and should
not have been counted separately and that application of the "inter-
vening arrest" rule would violate the Ex Post Facto Clause. The dis-
trict court overruled his objections, found that Williams was a career
offender, and sentenced him to 210-months imprisonment. Williams
now appeals the career offender determination.
A defendant is a career offender if (1) he was at least eighteen at
the time of the instant offense; (2) the instant offense of conviction
is a violent or drug felony; and (3) the defendant has at least two prior
violent or drug felony convictions. USSG § 4B1.1(a). Williams does
not dispute the first two requirements; however, with regard to the
third requirement, Williams contends that his prior convictions were
related and should not be counted separately.
Prior sentences imposed in related cases are to be treated as one
sentence for purposes of USSG § 4B1.1. USSG §§ 4A1.2, comment.
(n.3); 4B1.2, comment. (n.3). Nevertheless, prior sentences are not
considered related if they were for offenses that were separated by an
intervening arrest. USSG § 4A1.2, comment. (n.3). It is undisputed
that Williams’ prior convictions were separated by an intervening
arrest.
However, Williams contends that application of the commentary to
USSG § 4A1.2 to offenses committed before its November 1991
effective date would violate the Ex Post Facto Clause. Williams’ prior
convictions used to determine his career offender status were for
offenses committed in 1989, prior to adoption of the commentary.
Nonetheless, we find no ex post facto problem.
UNITED STATES v. WILLIAMS 3
The provisions of § 4A1.2 and its commentary were enacted before
Williams committed the instant offense of conviction, which is the
relevant offense for an ex post facto analysis. See United States v.
Allen, 886 F.2d 143, 146 (8th Cir. 1989) (so long as actual crime for
which defendant is being sentenced occurred after the effective date
of new statute, there is no ex post facto violation); see also Gryger
v. Burke, 334 U.S. 728, 732 (1948) ("Nor do we think that the fact
that one of the convictions that entered into the calculations by which
petitioner became a fourth offender occurred before the Act [which
enhanced the punishment for being a fourth time offender] was
passed, makes the Act invalidly retroactive . . ."). Moreover, USSG
§ 1B1.11 instructs courts to apply the Guidelines in effect on the date
of sentencing. However, if the guidelines violate the Ex Post Facto
Clause, the court shall use the guidelines in effect "on the date that
the offense of conviction was committed." USSG § 1B1.11(b)(1).
Williams’ offense of conviction was committed in 2000-2001, and
Williams was sentenced in 2003. Under § 1B1.11, the 1991 commen-
tary of § 4A1.2 applies regardless of an ex post facto determination
by the district court. See United States v. Brewster, 137 F.3d 853,
858-59 (5th Cir. 1998).
It is undisputed that Williams’ two offenses were separated by an
intervening arrest. Thus, they are not related, and as there is no ex
post facto problem, they were properly counted separately in deter-
mining that Williams was a career offender. Accordingly, we affirm
Williams’ sentence. We deny Williams’ motions to substitute attor-
neys and for a continuance. We dispense with oral argument, because
the facts and legal contentions area adequately presented in the mate-
rials before the court and argument would not aid the decisional pro-
cess.
AFFIRMED