United States v. Williams , 293 F. App'x 190 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5033
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EVERETT LESLIE WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00407-1)
Submitted: August 26, 2008 Decided: September 15, 2008
Before WILLIAMS, Chief Judge, and NIEMEYER and TRAXLER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Kevin A. Tate, Charlotte, North
Carolina; Matthew R. Segal, Asheville, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney, Adam
Morris, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Everett Leslie Williams appeals the ninety-six-month
sentence he received after his case was remanded for resentencing.
United States v. Williams, 242 F. App’x 925 (4th Cir. 2007). He
contends that the district court abused its discretion by departing
above the guideline range of 30-37 months pursuant to U.S.
Sentencing Guidelines Manual § 4A1.3, p.s. (2006), and 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2008), and that his sentence violates
the Sixth Amendment because the court relied on judicial fact-
finding to justify the departure. We affirm.
At Williams’ first sentencing, the district court
departed upward under USSG § 4A1.3. On appeal, we held that the
district court’s factual findings at sentencing did not violate the
Fifth and Sixth Amendments and that the decision to depart upward
was reasonable. However, we concluded that the district court
erred in treating Williams as a de facto career offender, and also
failed to comply with the procedure set out in § 4A1.3(a)(4)(B) for
a departure above criminal history category VI.
On remand, the court again determined that a departure to
a sentence of ninety-six months was warranted, even though the
offense did not involve violence and the stolen goods were
recovered. First, the court found that Williams’ current property
offenses actually involved his robbery of two jewelry stores, and
thus had the potential for physical violence. The court noted that
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Williams had been robbing jewelry stores for almost twenty years,
carrying on this activity whenever he was not incarcerated, which
indicated a high likelihood that he would commit similar crimes in
the future. The court stated that the sentencing goals set out in
§ 3553(a)(2), especially protection of the public, were not met by
the guideline range. The court further noted that Williams had 27
criminal history points (mostly for diamond thefts) and 11 prior
sentences for similar offenses which were not counted in his
criminal history because they were outside the applicable time
period.
Following the procedure required by § 4A1.3(a)(4)(B) for
a departure above category VI, the court moved down the sentencing
table from offense level 12 to offense level 21, which resulted in
an increased guideline range of 77-96 months. The court stated
that it had considered each intervening offense level and found
that each was inadequate. The court stated that only the statutory
maximum ten-year sentence (applicable to Counts Two and Three, the
substantive counts) would be a sufficient sentence, but departed to
offense level 21 instead of offense level 24 (which would have
produced a range of 100-125 months) to give Williams some benefit
from his acceptance of responsibility. The court again imposed a
sentence of ninety-six months, and alternatively explained the
basis for the sentence as a variance, finding that the increased
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sentence was necessary to accomplish all the sentencing goals set
out in § 3553(a).
After United States v. Booker, 543 U.S. 220 (2005), a
sentence is reviewed for reasonableness, using an abuse of
discretion standard of review. Gall v. United States, 128 S. Ct.
586, 597 (2007). The first step in this review requires the court
to ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 162 (4th
Cir. 2008). If there are no procedural errors, the appellate court
then considers the substantive reasonableness of the sentence,
“taking into account the totality of the circumstances, including
the extent of any variance from the Guidelines range.” Gall, 128
S. Ct. at 597. While the court may presume a sentence within the
Guidelines range to be reasonable, it may not presume a sentence
outside the range to be unreasonable. Id. Moreover, it must give
due deference to the district court’s decision that the § 3553(a)
factors justify imposing a variant sentence and to its
determination regarding the extent of any variance. Even if the
reviewing court would have reached a different sentencing result on
its own, this fact alone is insufficient to justify reversal of the
district court. Id.
Here, the district court followed the necessary
procedural steps in sentencing Williams, properly calculating the
Guidelines range and considering that recommendation in conjunction
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with § 4A1.3, as well as the § 3553(a) factors. With respect to
the incremental approach, the district court need not explain its
rejection of each intervening offense level. United States v.
Dalton, 477 F.3d 195, 199 (4th Cir. 2007).
Although Williams contends that the court could not
characterize its deviation from the guideline range as a variance
as well as a departure, and that the sentence may not be upheld as
a variance, we have held to the contrary. See Evans, 526 F.3d at
164. In light of the facts of this case, and the district court’s
meaningful articulation of its consideration of the § 3553(a)
factors as a basis for departing from the recommended guideline
range, we conclude that the extent of the departure was reasonable.
Williams also argues that the district court violated the
Sixth Amendment by finding facts to justify a sentence outside the
range authorized by facts charged in the indictment or admitted by
him. Williams did not raise this particular Sixth Amendment issue
in his first appeal or on remand in the district court. Therefore,
under the mandate rule, he has forfeited consideration of the
issue, see United States v. Bell, 5 F.3d 64, 66-67 (4th Cir. 1993),
and we need not address it on the merits.*
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
*
Williams relies on Justice Scalia’s concurrence in Rita
v. United States, 127 S. Ct. 2456, 2477 (2007).
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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