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


Menu:
  •                                UNPUBLISHED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    Affirmed by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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
    2
    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
    3
    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
    4
    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).
    5
    contentions are adequately presented in the materials before the
    court and argument would not aid the decisional process.
    AFFIRMED
    6
    

Document Info

Docket Number: 07-5033

Citation Numbers: 293 F. App'x 190

Judges: Williams, Niemeyer, Traxler

Filed Date: 9/15/2008

Precedential Status: Non-Precedential

Modified Date: 10/19/2024