United States v. Williams ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5041
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CONSTANZUS MARCEL WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (6:07-cr-00270-GRA)
Submitted: October 16, 2008 Decided: November 3, 2008
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ryan L. Beasley, PRICE, ASHMORE & BEASLEY, P.A., Greenville, South
Carolina, for Appellant. Elizabeth Jean Howard, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Constanzus Marcel Williams pled guilty pursuant to a
written plea agreement to one count of possessing a firearm after
being convicted of a felony, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e) (2000). The court sentenced Williams to
212 months in prison, and Williams timely appealed. Williams’
attorney filed a brief in accordance with Anders v. California, 386
U.S. 739 (1967), certifying that there are no meritorious grounds
for appeal, but questioning whether the district court erred in
calculating Williams’ criminal history points and abused its
discretion by not imposing a lower sentence. The Government did
not file a reply brief. Williams submitted a pro se supplemental
brief contending that the district court improperly assessed
certain criminal history points and the district court exhibited
bias during sentencing. Finding no reversible error, we affirm.
Williams argues that the court erred by counting prior
convictions as separate offenses in calculating his criminal
history. Williams argues that because some of his state sentences
were run concurrently or because he was sentenced on the same date
for several offenses, the offenses should not be counted separately
in calculating his criminal history. Pursuant to U.S. Sentencing
Guidelines Manual (U.S.S.G.) § 4A1.2(a)(2) (2006), “[p]rior
sentences imposed in unrelated cases are to be counted separately”
in the criminal history calculation. The commentary to this
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guideline provides that “[p]rior sentences are not considered
related if they were for offenses that were separated by an
intervening arrest,” but will be considered related if the offenses
“occurred on the same occasion,” “were part of a single common
scheme or plan,” or “were consolidated for trial or sentencing.”
§ 4A1.2 comment. (n.3). Here, there is no contention that the
offenses actually occurred on the same occasion or were part of a
common plan. Moreover, the presentence report provides no
indication that Williams’ convictions were consolidated for
sentencing; rather, he received separate sentences for each
conviction. See United States v. Allen, 50 F.3d 294, 296-98 (4th
Cir. 1995) (absent formal consolidation, single sentencing
proceeding and concurrent sentences do not make convictions related
for criminal history purposes). Thus, our review of the record
leads us to conclude that the district court did not err in
calculating Williams’ criminal history.
Williams next suggests that the 212-month term of
imprisonment imposed by the district court was unreasonable. After
United States v. Booker, 543 U.S. 220 (2005), a district court is
no longer bound by the range prescribed by the sentencing
guidelines. However, in imposing a sentence post-Booker, courts
still must calculate the applicable guidelines range after making
the appropriate findings of fact, and consider the range in
conjunction with other relevant factors under the guidelines and 18
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U.S.C.A. § 3553(a) (West 2000 & Supp. 2008). Gall v. United
States, 128 S. Ct. 586, 596 (2007). The court must give “both
parties an opportunity to argue for whatever sentence they deem
appropriate,” and the district judge “may not presume that the
Guidelines range is reasonable.” Gall, 128 S. Ct. at 596-97. This
court will affirm a post-Booker sentence if it “is within the
statutorily prescribed range and is reasonable.” United States v.
Moreland, 437 F.3d 424, 433 (4th Cir. 2006) (internal quotation
marks and citation omitted). On appellate review, this court may
presume that a sentence within the properly calculated advisory
guidelines range is reasonable. Rita v. United States, 127 S. Ct.
2456, 2462, 2465 (2007).
Here, the district court sentenced Williams after
considering and examining the sentencing guidelines and the
§ 3553(a) factors, as instructed by Booker, and applied the
guidelines as advisory. The court correctly sentenced Williams as
an armed career criminal under 18 U.S.C. § 924(e) and U.S.S.G.
§ 4B1.1, finding that he had the three requisite predicate
offenses. The court heard from both Williams and the Government
regarding the calculation of his criminal history score and
Williams was permitted to argue for a lower sentence. The court
sentenced Williams to 212 months, the middle of the advisory
guidelines range.
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The district court imposed a sentence within the
guideline range and the statutory maximum. Neither Williams nor
the record suggests any information to rebut the presumption that
his sentence was reasonable. We therefore conclude that the
sentence was reasonable.
In his pro se supplemental brief, Williams alleges that
the court demonstrated judicial bias in fashioning his sentence.
A judge “shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned,” 28 U.S.C. § 455(a)
(2000); see United States v. Cherry, 330 F.3d 658, 665 (4th Cir.
2003), or in situations in which the judge has a personal bias or
prejudice against or in favor of an adverse party. See Liteky v.
United States, 510 U.S. 540, 555 (1994). Williams’ allegations of
bias stem from the court’s statements about Williams’ extensive
criminal history, his danger to the community, and his spurious
objections at sentencing to his past criminal convictions. The
record reveals no indication that these comments arose from a
personal, extrajudicial source. We have concluded that the court’s
sentence was reasonable. Williams thus fails to establish that the
judge demonstrated bias or prejudice.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Williams’ conviction and sentence. This court
requires that counsel inform Williams, in writing, of the right to
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petition the Supreme Court of the United States for further review.
If Williams requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Williams.
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
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