United States v. Williams , 242 F. App'x 925 ( 2007 )

Filed: July 6, 2007
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4978
(3:05-cr-00407)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EVERETT LESLIE WILLIAMS,
Defendant - Appellant.
O R D E R
The court amends its opinion filed July 5, 2007, as follows:
On page 3, the first sentence of the third full paragraph is
amended by substituting the word “defendant” for “government.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4978
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
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)
Submitted: May 30, 2007 Decided: July 5, 2007
Before WILLIAMS, Chief Judge, and NIEMEYER and TRAXLER, Circuit
Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Kevin A. Tate, Federal Defenders of Western North Carolina, Inc.,
Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert,
United States Attorney, Thomas Cullen, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After he stole two diamond rings from a jewelry store
clerk, sold one ring in a different state and attempted to sell the
other ring, Everett Leslie Williams pled guilty to conspiracy to
defraud the United States, 18 U.S.C. § 371 (2000) (Count One);
transportation of stolen goods, 18 U.S.C. §§ 2314,* 2 (2000) (Count
Two); and sale of stolen goods, 18 U.S.C. §§ 2315, 2 (2000) (Count
Three). The district court overruled Williams’ objections to the
presentence report and adopted the recommended enhancements for a
loss in excess of $51,000 and theft from the person of another.
U.S. Sentencing Guidelines Manual § 2B1.1(b)(1)(D), (b)(3) (2005).
The court also departed above the advisory guideline range of 30-37
months pursuant to USSG § 4A1.3, p.s., and imposed concurrent
sentences of five years (the statutory maximum) for Count One, and
ninety-six months for Counts Two and Three. Williams appeals his
sentence, arguing that (1) the district court’s factual findings
concerning the sentence violated the Fifth and Sixth Amendments
under United States v. Booker, 543 U.S. 220 (2005), (2) the
district court’s upward departure was unreasonable, and (3) the
district court failed to make findings of fact to support
enhancements for the loss amount and theft from a person. We
affirm the district court’s calculation of the advisory guideline
*
Count Two of the indictment charged a violation of 18 U.S.C.
§ 2314. The presentence report and the judgment order erroneously
state that Count Two charged a violation of 18 U.S.C. § 2313.
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range, but conclude that the court’s explanation for the departure
was inadequate. We therefore vacate the sentence and remand for
further proceedings.
Williams first contends that this Circuit’s precedents
have effectively made the guidelines mandatory despite Booker and
that, consequently, the district court’s factual findings violated
the Fifth and Sixth Amendments. We disagree and, in any case, may
not overrule the decision of another panel. United States v.
Chong, 285 F.3d 343, 346 (4th Cir. 2002).
Next, we conclude that the district court’s decision to
depart upward was reasonable. See United States v. Dalton, 477
F.3d 195, 197 (4th Cir. 2007) (standard of review). The court
noted that no criminal history points were given for eleven of
Williams’ prior sentences, that ten of the prior offenses were
felonies involving conduct similar to that underlying the instant
offenses and that they were committed while Williams was on
probation or free on bond. However, given the extent of the
departure, the district court’s explanation of its reasons for
departing to a sentence of ninety-six months was inadequate.
We agree with the defendant that the district court
erred when it structured the departure by treating Williams as a
de facto career offender. A defendant may be sentenced under § 4A1.3
as a de facto career offender if he would qualify for sentencing as
a career offender but for the fact that one or both of his
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predicate convictions may not be counted. United States v.
Harrison, 58 F.3d 115, 118 (4th Cir. 1995). Williams had the
necessary predicate convictions, but did not otherwise qualify as
a career offender because the instant offenses are not crimes of
violence. See USSG § 4B1.1.
The district court’s alternative explanation for the
ninety-six-month sentence did not comply with the procedure set out
in § 4A1.3(a)(4)(B) for a departure above category VI, which states
that the court “should structure the departure by moving
incrementally down the sentencing table to the next higher offense
level in Criminal History Category VI until it finds a guideline
range appropriate to the case.” See Dalton, 477 F.3d at 199. The
district court arrived at an offense level of 24 (reduced to 21 for
acceptance of responsibility) and a range of 77-96 months by
treating Williams as a de facto career offender. The court did not
explain how, using the alternative extrapolation method, it again
arrived at a sentence of ninety-six months. Because the departure
sentence was more than two and a half times the top of the advisory
guideline range, a “more extensive justification” for the extent of
the departure is necessary. Dalton, 477 F.3d at 199-200.
Therefore, we vacate the sentence and remand for resentencing.
Williams also argues that, if the district court did not
violate his Fifth and Sixth Amendment rights, the sentence was
unreasonable because the court failed to make factual findings
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concerning the amount of loss and theft from the person of another.
He acknowledges that the court adopted the recommendations in the
presentence report, but maintains that the court’s failure to make
explicit findings makes the sentence procedurally unreasonable.
see United States v. Johnson, 445 F.3d 339, 344 (4th Cir. 2006)
(reasonableness has both procedural and substantive aspects). In
this case, the district court’s decision to overrule Williams’
factual objections and adopt the calculation in the presentence
report did not require detailed findings because undisputed facts
supported both contested enhancements.
We therefore affirm the district court’s decision to
apply enhancements for loss and theft from a person under USSG
§ 2B1.1(b)(1)(D) and (b)(3). However, because the court’s
explanation of its upward departure was insufficient, we vacate the
sentence and remand for further proceedings. 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.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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