United States v. Williams , 83 F. App'x 547 ( 2003 )


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  •                           UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                               No. 03-4480
    CARLOS ANTONIO WILLIAMS,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Middle District of North Carolina, at Greensboro.
    Frank W. Bullock, Jr., District Judge.
    (CR-02-155)
    Submitted: November 26, 2003
    Decided: December 23, 2003
    Before WILLIAMS and GREGORY, Circuit Judges, and
    HAMILTON, Senior Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    COUNSEL
    Jeffrey B. Welty, Durham, North Carolina, for Appellant. Anna Mills
    Wagoner, United States Attorney, Paul A. Weinman, Assistant United
    States Attorney, Winston-Salem, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    2                     UNITED STATES v. WILLIAMS
    OPINION
    PER CURIAM:
    Carlos Antonio Williams pled guilty to using and carrying a fire-
    arm in a crime of violence, 
    18 U.S.C. §§ 924
    (c), 2 (2000) (Count
    Three), and armed bank robbery, 
    18 U.S.C. § 2113
    (d), 2 (2000)
    (Count Five). He was sentenced to a term of 144 months imprison-
    ment for the bank robbery and a consecutive seven-year sentence for
    the § 924(c) offense. The whole sentence was made consecutive to the
    state sentence for second degree murder that Williams was serving.
    Williams appeals his sentence, arguing that the district court errone-
    ously relied on its having resolved a sentencing issue in Williams’
    favor when it decided to impose a sentence at the high end of the
    guideline range, and erred in making Williams’ sentence consecutive
    to the state sentence he was serving. We affirm.
    During the sentencing hearing, the district court granted Williams’
    objection to the presentence report concerning the correct enhance-
    ment for his use of a firearm during the robbery. The court deter-
    mined that Williams had brandished the firearm but had not
    "otherwise used" it; the court thus reduced the recommended six-level
    enhancement to a five-level enhancement. See U.S. Sentencing Guide-
    lines Manual § 2B3.1(b)(2). The court imposed a sentence of 144
    months for the bank robbery; the guideline range was 120-150
    months. The court explained:
    I have given you a sentence toward the high end of the
    guideline range for the reasons that I have indicated: the vio-
    lent nature of the offense, other facts set out in the presen-
    tence report, the fact that the Court could arguably have
    applied an even higher offense level to your conduct.
    Because Williams was already serving a state sentence of at least
    114 months imprisonment for a second degree murder that he com-
    mitted after the bank robbery, the district court had the option of mak-
    ing the federal sentence concurrent, partially concurrent, or
    consecutive to the undischarged state sentence. The court decided that
    a consecutive sentence was a "reasonable punishment" under the facts
    and circumstances of the case.
    UNITED STATES v. WILLIAMS                        3
    On appeal, Williams first contends that his sentence for the bank
    robbery is illegal because the district court relied on the fact that it
    resolved the firearm enhancement issue in Williams’ favor in decid-
    ing to impose a sentence at the high end of the guideline range. Wil-
    liams made no objection to the district court’s reasons for imposing
    sentence at the high end of the guideline range at the time sentence
    was imposed. Therefore, his claim of error is reviewed under the plain
    error standard. United States v. Olano, 
    507 U.S. 725
    , 732-37 (1993)
    (unpreserved error may be corrected only if error occurred, that was
    plain and affects substantial rights, and if failure to correct error
    would seriously affect the fairness, integrity, or public reputation of
    judicial proceedings).*
    This court has held that the district court has "almost limitless dis-
    cretion" to decide where to impose sentence within a correctly calcu-
    lated guideline range. United States v. Holmes, 
    60 F.3d 1134
    , 1137
    (4th Cir. 1995). The court’s discretion is limited only by the require-
    ment that it not impose a sentence in violation of law, see 
    18 U.S.C.A. § 3742
    (e)(1) (West Supp. 2003), such as a sentence based on race or
    another "unconstitutional classification." Holmes, 
    60 F.3d at 1137
    .
    Williams asserts that the fact that the district court ruled in his favor
    on the brandishing issue was an improper factor for the court to con-
    sider in determining where to impose sentence within the guideline
    range because it does not fall within any of the categories of factors
    set out in 
    18 U.S.C.A. § 3553
    (a).
    We disagree. The district court’s consideration of the fact that it
    had ruled in Williams’ favor on the firearm enhancement, which it
    considered a close issue, was well within its obligation to bear in
    mind the facts and circumstances of the offense when determining the
    sentence and to impose a sentence that reflected the seriousness of the
    offense. See 
    18 U.S.C.A. § 3553
    (a). Williams has not shown that the
    court exceeded the bounds of its discretion in doing so. Therefore, we
    are satisfied that the sentence was not imposed in violation of law.
    *Williams contends that the issue was preserved for review under Fed.
    R. Crim. P. 51 when his attorney asked for a sentence at the low end of
    the guideline range. However, his attorney did not suggest below that the
    sentence imposed was illegal or that the district court relied on an
    improper factor, as he now contends.
    4                     UNITED STATES v. WILLIAMS
    Williams next argues that the court erred in making the sentence
    consecutive to his state sentence. Under USSG § 5G1.3(c), when a
    defendant is serving an undischarged sentence but (1) the instant
    offense was not committed while the defendant was serving the undis-
    charged sentence, and (2) the conduct resulting in the undischarged
    sentence has not been taken into account in determining the offense
    level for the instant offense, the sentencing court may impose a sen-
    tence that is concurrent, partially concurrent, or consecutive to the
    undischarged sentence. The court is directed to consider the factors
    set out in 
    18 U.S.C.A. § 3584
     (referencing § 3553(a)), as well as the
    type of sentence being served and circumstances related to it.
    Williams contends that the district court erred in its application of
    § 5G1.3(c) when it imposed a sentence consecutive to the state sen-
    tence he was serving for second degree murder. A claim that the dis-
    trict court erred in applying a guideline is a legal issue and is
    reviewed de novo. United States v. Mosley, 
    200 F.3d 218
    , 221 (4th
    Cir. 1999).
    The court explained its decision to impose a consecutive sentence
    by noting the seriousness of Williams’ conduct during the bank rob-
    bery and stating:
    [T]he Court has already given the defendant a year and a
    half . . . more or less than arguably could have been given
    had the Court adopted the presentence report calculations of
    the guidelines for count five. And to determine what is a
    reasonable punishment in this case, Mr. Williams, I have
    determined that [it] is a reasonable punishment in this case
    to run your 228-month sentence consecutively to the sen-
    tence that you are now serving in the state court. I think that
    is an appropriate sentence under the facts and circumstances
    of this case.
    Williams argues that the district court erred by considering the
    same improper factor as before and that his 228-month sentence,
    made consecutive to his state sentence, is "manifestly unjust and an
    abuse of discretion," in light of his co-defendants’ lighter sentences
    for the bank robbery.
    UNITED STATES v. WILLIAMS                       5
    As previously discussed, § 3553(a) does not forbid the district court
    to consider its own sentencing determinations when deciding what
    sentence to impose. With the enactment of Guideline Amendment
    535, effective November 1, 1995, the district court was given "addi-
    tional flexibility" to decide whether the sentence for the instant
    offense should be concurrent, partially concurrent, or consecutive to
    an undischarged sentence so that "the instruction to the [Sentencing]
    Commission in 
    28 U.S.C. § 994
    (l)(1) to provide a reasonable incre-
    mental penalty for additional offenses" could be implemented in all
    situations. USSG App. C at 535. Williams has not demonstrated any
    error on the part of the district court in the exercise of the consider-
    able discretion afforded it under the guidelines to decide what the
    "reasonable incremental penalty" may be in a given case. Therefore,
    we conclude that district court did not err in deciding to make the sen-
    tence consecutive.
    We therefore affirm the sentence imposed by the district court. We
    dispense with oral argument because the facts and legal contentions
    are adequately presented in the materials before the court and argu-
    ment would not aid the decisional process.
    AFFIRMED
    

Document Info

Docket Number: 03-4480

Citation Numbers: 83 F. App'x 547

Judges: Williams, Gregory, Hamilton

Filed Date: 12/23/2003

Precedential Status: Non-Precedential

Modified Date: 11/6/2024