United States v. Williams , 71 F. App'x 197 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4097
LILIANE RENA WILLIAMS,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-02-266)
Submitted: June 30, 2003
Decided: July 29, 2003
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen III, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, L. Patrick Auld, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee.
2 UNITED STATES v. WILLIAMS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Liliane Rena Williams pled guilty to bank robbery, 18 U.S.C.
§ 2113(a) (2000) (Count One), and carrying or using a firearm in a
crime of violence, 18 U.S.C. § 924(c) (2000) (Count Three). She was
sentenced to thirty-three months imprisonment for Count One and a
mandatory consecutive term of eighty-four months imprisonment for
Count Three. The district court declined to depart on the ground of
aberrant behavior. U.S. Sentencing Guidelines Manual § 5K2.20, p.s.
(2002). Williams contends on appeal that the district court’s decision
not to depart downward is appealable because it was the result of
erroneous legal conclusions concerning whether she engaged in "sig-
nificant planning" and whether she "otherwise used" the firearm when
she pointed it at a teller, and because the court erred in limiting its
determination of whether the case was extraordinary to a consider-
ation of her motive for robbing the bank. We dismiss the appeal for
lack of jurisdiction.
Section 5K2.20 provides that a departure may be warranted in an
extraordinary case where the defendant’s conduct constitutes aberrant
behavior, which is described in Application Note 1 as "a single crimi-
nal occurrence or single criminal transaction that (A) was committed
without significant planning; (B) was of limited duration; and (C) rep-
resents a marked deviation by the defendant from an otherwise law-
abiding life." The court must thus determine, as a threshold matter,
that the case is extraordinary. USSG § 5K2.20, App. C, amend. 603;
United States v. Castano-Vasquez, 266 F.3d 228, 243 (3d Cir. 2001).
The policy statement sets out a number of factors that the sentencing
court "may consider" in determining whether to depart. These factors
are: "the defendant’s (1) mental and emotional conditions; (2)
employment record; (3) record of prior good works; (4) motivation
for committing the offense; and (5) efforts to mitigate the effects of
the offense." USSG § 5K2.20, comment. (n.2). The policy statement
UNITED STATES v. WILLIAMS 3
also provides that the sentencing court may not depart on the ground
of aberrant behavior if:
(1) the offense involved serious bodily injury or death; (2)
the defendant discharged a firearm or otherwise used a fire-
arm or a dangerous weapon; (3) the instant offense of con-
viction is a serious drug trafficking offense; (4) the
defendant has more than one criminal history point . . .; or
(5) the defendant has a prior federal, or state, felony convic-
tion, regardless of whether the conviction is countable under
Chapter Four of the guidelines.
USSG § 5K2.20.
Williams had no prior criminal record. She requested a downward
departure for aberrant behavior. With respect to the requirement that
she not have discharged or "otherwise used" a firearm, Williams con-
tended that her conduct did not amount to "more than brandishing,
displaying, or possessing a firearm," which is how the term "other-
wise used" is defined in Application Note 1 to § 5K2.20 (using defini-
tion in USSG § 1B1.1, comment. (n.1(f)). The district court
determined that Williams’ conduct was a single occurrence of crimi-
nal activity and that it was a marked deviation from a previously law-
abiding life. However, the court found that Williams’ planning for the
robbery was not insignificant. The court also found that, even if Wil-
liams’ planning was not significant, she had not shown extraordinary
circumstances that would warrant a departure because she was not
motivated by mental illness or other mental health problems, but by
a need for money.
Last, the court determined that Williams had done more than bran-
dish a firearm, that she had "otherwise used" the shotgun when she
pointed it at the teller. Therefore, the court decided that, even if there
was a basis for finding that Williams’ conduct was aberrant behavior,
a departure on that basis was precluded by the language in § 5K2.20.
A district court’s decision not to depart from the guideline range
is not reviewable on appeal except in the "very narrow situation" that
the sentence is imposed in violation of law in that the district court
based its decision on a mistaken view that it lacked legal authority to
depart. United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990);
see also United States v. Carr, 303 F.3d 539, 545 (4th Cir. 2002),
cert. denied, 123 S. Ct. 929 (2003); United States v. Hall, 977 F.2d
4 UNITED STATES v. WILLIAMS
861, 863 (4th Cir. 1992). Williams does not dispute that the district
court understood its authority to depart for aberrant behavior. Instead,
she argues that the district court’s decision not to depart is subject to
review because it was based on three legal errors she claims the court
made in the process of determining that a departure was not war-
ranted: (1) a finding that Williams’ planning was not insignificant, (2)
a finding that a departure was precluded because Williams "otherwise
used" the firearm, and (3) the court’s limiting of its inquiry into
whether the case was extraordinary to a consideration of Williams’
motive for committing the robbery. The government contends that
review is unavailable because the district court understood its author-
ity to depart for aberrant behavior if circumstances warranted and
exercised its discretion in deciding not to depart. We agree.
The district court decided that Williams’ case was not an extraordi-
nary one in which a departure was appropriate. This determination is
a "threshold matter," see USSG App. C, amend. 603 ("As a threshold
matter, this amendment provides that the departure is available only
in an extraordinary case."); see also United States v. Castano-
Vasquez, 266 F.3d 228, 234 (3d Cir. 2001) (holding that sentencing
court must decide separately whether case is extraordinary and
whether defendant’s conduct constituted aberrant behavior). This
determination cannot be characterized as a legal error, although Wil-
liams attempts to do so by arguing that the court erred in mentioning
only one of the factors listed in Application Note 2 to § 5K2.20. How-
ever, the factors listed there are set out as circumstances the court
"may consider." The court’s mention of only one factor does not con-
stitute legal error. Castano-Vasquez, 266 F.3d at 234. Thus, because
the district court found, as a threshold matter, that Williams’ case was
not an extraordinary one where a departure for aberrant behavior was
appropriate, the district court’s exercise of its discretion in deciding
not to depart is not reviewable.
We therefore dismiss the 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.
DISMISSED