United States v. Waters , 281 F. App'x 152 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4726
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIE LAMARK WATERS, a/k/a Mark, a/k/a Boom
Boom, a/k/a Bang ‘em up,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:07-cr-00022-JBF)
Submitted: April 22, 2008 Decided: June 6, 2008
Before MICHAEL and DUNCAN, Circuit Judges, and Jackson L. KISER,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Alexandria,
Virginia, Keith Loren Kimball, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Alexandria,
Virginia, James Ashford Metcalfe, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Appellant Willie Lamark Waters (“Waters”) pleaded guilty to
(1) possession and sale of a stolen firearm, in violation of 18
U.S.C. § 922(j); (2) distribution of 2.7 grams of cocaine base
(“crack”), in violation of 21 U.S.C. § 841(a)(1); (3) possession of
a firearm with an altered or obliterated serial number, in
violation of 18 U.S.C. § 922(k); and (4) carrying a firearm during
and in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A). The district court sentenced Waters to 200
months’ imprisonment for the first three counts and an additional
consecutive 60 months’ imprisonment, mandated by statute, on count
four. On appeal, Waters challenges the reasonableness of this
sentence. For the reasons that follow, we affirm.
I.
Waters was indicted after twice selling firearms, and on one
occasion crack cocaine along with a firearm, to a confidential
informant, and being recorded by the Portsmouth Police Department
and the Alcohol, Tobacco, and Firearms (“ATF”) Task Force in the
process. He subsequently pleaded guilty to all charges in the
indictment and agreed to the underlying facts.
Prior to his sentencing, a probation officer prepared Waters’s
pre-sentence report (“PSR”). The PSR listed Waters’s total offense
level under the United States Sentencing Guidelines (the
3
“Guidelines”) as 30. This included a 2-level increase for
obstruction of justice pursuant to U.S.S.G. § 3C1.1. Specifically,
the PSR alleged that, “[F]ollowing his arrest for the instant
offenses, [Waters] attempted to have a witness murdered so that
[the witness] would not be available to testify against [him].”
J.A. 149. As a result, the PSR also recommended denying Waters the
offense level reduction for acceptance of responsibility. See
U.S.S.G. § 3E1.1 cmt. n.4 (“Conduct resulting in an enhancement
under § 3C1.1 (Obstructing or Impeding the Administration of
Justice) ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct.”). The PSR listed
Waters’s “criminal history category” as III, based on his prior
convictions. The corresponding Guidelines range for Waters’s four
offenses, based on this criminal history category and his offense
level, was 181 to 211 months (121 to 151 months, plus the
statutorily mandated consecutive sentence of 60 months for his
conviction under 18 U.S.C. § 924(c)(1)(A)--carrying a firearm
during and in relation to a drug trafficking crime).
At Waters’s sentencing hearing, the government argued for an
upward departure in his criminal history category on the grounds
that category III did not adequately reflect the seriousness of his
actual criminal history and his likelihood of recidivism. See
U.S.S.G. § 4A1.3(a)(2)(E). The government cited a number of
incidents detailed in the PSR, including Waters’s alleged pointing
4
of a handgun at a victim and threatening the victim’s life in
September 2006, which resulted in a dismissed concealed weapons
charge, and Waters’s almost identical conduct in January 2007,
which resulted in a charge of brandishing a firearm which was
subsequently nol pressed.
In support of the September 2006 allegation, the government
introduced into evidence a police report of the incident and
statements made by the victim and his mother. One of the
government’s witnesses, ATF Agent Christopher Scott, also testified
to the conversations that he had with those individuals in which
they confirmed the allegations but declined to testify against
Waters.
As to the January 2007 incident, the government called another
witness, Officer Isaac Lopez of the Suffolk Police Department, who
testified that Waters was accused of pointing a handgun at two
female victims and threatening to fire the handgun into a van
containing the victims as well as several children. Officer Lopez
recounted his interviews with the victims and witnesses of the
incident. Officer Lopez also testified that Waters admitted
involvement in the incident but stated that he had not brandished
a handgun, claiming instead that another individual had fired a
handgun at him. The government submitted the victims’ and
witnesses’ grand jury testimony to the court.
5
The government further argued that Waters’s sentence should be
increased due to several aggravating circumstances. Agent Scott
testified to Waters’s involvement in the violent “Williamstown
Gang.” In addition to describing several shootings in which the
Williamstown Gang was allegedly involved, Agent Scott described a
video confiscated by police which depicted Waters, along with
several other known gang members, brandishing firearms and flashing
the Williamstown Gang’s signs. The government submitted still
photos from this video to the court. Agent Scott further testified
that Waters was often seen wearing the colors of the Williamstown
Gang and went by the gang nickname “Bang em up.”
Most significantly, Agent Scott went on to describe Waters’s
alleged attempt, while incarcerated, to hire a hit man to murder
the government’s principal witness against him. According to Agent
Scott’s testimony, Waters solicited a fellow inmate to locate
someone who would murder the witness for a sum of money. Waters
told the inmate that he was in contact with his own gang members to
perform the murder but that he needed it done more quickly as his
court date was fast approaching. The inmate reported Waters’s
request to law enforcement agents who then arranged for Waters to
be contacted by an undercover officer posing as a “hitman.” In a
recorded telephone conversation, Waters gave detailed instructions
to the undercover officer and stressed that the murder needed to be
carried out immediately due to the imminence of his trial date.
6
Waters agreed to pay $3000 in installments for the crime. The
government submitted a transcript of this recorded conversation to
the court along with the supporting investigative summaries.
Waters did not submit any evidence or otherwise refute the
government’s allegations. He did, however, argue against the
obstruction of justice enhancement, in favor of the acceptance of
responsibility reduction, and against both of the government’s
motions for upward departures.
After hearing the above testimony and reviewing the evidence,
the district court first found, by a preponderance of the evidence,
that Waters should receive the U.S.S.G. § 3C1.1 obstruction of
justice enhancement. The court then denied Waters the acceptance
of responsibility reduction, stating, “The solicitation to murder
one of the government’s chief witnesses in order to prevent him or
her from testifying . . . is clear evidence that he’s not truly
accepting responsibility for all of his criminal conduct.” J.A.
110.
The court next found that there was sufficient evidence to
corroborate the allegations that Waters had brandished a firearm
and made violent threats in September 2006 and January 2007, and
was a member of the Williamstown Gang. Based on the two
“brandishing” incidents, and applying the incremental approach
mandated by U.S.S.G § 4A1.3(a)(4)(B) and United States v. Rusher,
7
966 F.2d 868 (4th Cir. 1992),1 the district court increased
Waters’s criminal history category from III to IV. This upward
departure had the effect of increasing Waters’s Guideline range
from 181 to 211 months to 195 to 228 months.2
The district court then turned to the sentencing factors in 18
U.S.C. § 3553(a). The government had argued that Waters’s
“membership in a gang and the extent of [his] attempted
obstruction” made this an “extraordinary” case where an upward
variance in the sentence was appropriate. J.A. 120. Waters,
however, urged the court to vary the sentence downward to only 10
years’, or 120 months’, imprisonment based on his feelings of
remorse, his youth, troubled childhood, and limited violent
criminal history. The court considered both parties’ arguments and
each § 3553(a) factor and determined that due to “the type of
1
Rusher provides the following:
Once the district court has decided to depart upward in
the criminal history category, the majority of courts, in
making their “reasonableness” inquiry, require the judge
to refer first to the next higher category and allow the
court to move on to a still higher category only upon a
finding that the next higher category fails adequately to
reflect the seriousness of the defendant's record.
966 F.2d at 884.
2
At sentencing, the district court failed to include the
obstruction of justice enhancement in its calculation and therefore
misstated that this departure increased Waters’s guideline range to
135 to 168 months. Neither party argues that this misstatement
affected Waters’s ultimate sentence, and it was subsequently
corrected in the court’s final order.
8
obstruction of justice in this particular case [and] the membership
in . . . a very violent gang,” an upward variance was warranted.
The court sentenced Waters to a total of 260 months’ imprisonment
followed by a 5-year period of supervised release. Waters
challenges this sentence on appeal.
II.
A.
The Supreme Court has recently clarified the limited scope of
our review of district courts’ sentencing determinations. It is
now clear that we review all such determinations for abuse of
discretion, whether or not the sentence imposed is within the
advisory Guidelines range. See Gall v. United States, 128 S. Ct.
586, 597 (2007). “This abuse of discretion standard of review
involves two steps[;] the first examines the sentence for
significant procedural errors, the second looks at the substance of
the sentence.” United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007) (examining Gall, 128 S. Ct. at 596-97). Significant
procedural errors include “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence--including an explanation for any
deviation from the Guidelines range.” Gall, 128 S. Ct. at 597.
9
Our substantive review, by contrast, goes to the length and
contours of the sentence imposed. When reviewing a sentence for
substantive reasonableness, this court must “take into account the
totality of the circumstances, including the extent of any variance
from the Guidelines range . . . but must give due deference to the
district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.”3 Id. This deference is
premised on the district court’s “greater familiarity . . . with
the individual case and the individual defendant,” and its
expertise in sentencing matters. Rita v. United States, 127 S. Ct.
2456, 2469 (2007). Thus, “[t]he fact that we might reasonably
conclude that a different sentence is appropriate is insufficient
to justify reversal of the district court.” United States v. Go,
517 F.3d 216, 218 (4th Cir. 2008) (emphasis added).
Under both prongs of our review, we examine the sentencing
court’s findings of fact for clear error and its legal conclusions
de novo. See United States v. Osborne, 514 F.3d 377, 387 (4th Cir.
2008).
B.
Waters first asserts that the district court committed
procedural error by “selecting a sentence based on clearly
3
We may not apply a presumption of unreasonableness to
sentences outside the Guidelines range. See Gall, 128 S. Ct. at
597.
10
erroneous facts.” Gall, 128 S. Ct. at 597. He contends that the
information underlying the upward departure in his criminal history
level was unreliable and that the court erred in concluding
otherwise. The government predictably disagrees.
The Guidelines provide that “[i]f reliable information
indicates that the defendant’s criminal history category
substantially under-represents the seriousness of the defendant’s
criminal history or the likelihood that the defendant will commit
other crimes, an upward departure may be warranted.” U.S.S.G.
§ 4A1.3(a)(1). Such information may include evidence that the
defendant has engaged in significant “[p]rior similar adult
criminal conduct not resulting in a criminal conviction.” U.S.S.G.
§ 4A1.3(a)(2)(E). When applying these Guidelines provisions in an
advisory manner, the district court may make factual findings, such
as whether information of similar conduct exists and if it is
indeed reliable, using the preponderance of the evidence standard.
See United States v. Battle, 499 F.3d 315, 322-23 (4th Cir. 2007).
We will overturn these findings only if they are clearly erroneous.
See id. at 323.
Far from constituting clear error, the district court’s
findings here were amply supported by the testimony of ATF Agent
Scott and Officer Lopez, transcripts of grand jury testimony of
Waters’s several victims and the several witnesses to his criminal
conduct, as well as photographs and police reports. Waters
11
presented absolutely no evidence to refute the allegations.
Further, the court used this wealth of “reliable” information to
increase Waters’s criminal history category by only one level and
explained its reasoning for doing so. In short, the district court
committed no procedural error.
C.
Waters next contends that the district court erred in imposing
the upward variance resulting in a 260 month sentence instead of
the 228 month Guidelines maximum (after applying the departure).
He argues that the variance was based on factors already accounted
for in calculating the Guidelines range and in the upward departure
discussed above. We disagree.
If the district court “decides that an outside-Guidelines
sentence is warranted, [it] must consider the extent of the
deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.” Gall, 128 S.
Ct. at 597. This court must uphold such a variance if the district
court’s rationale is “reasonable and premised on the factors set
forth in § 3553(a).” Pauley, 511 F.3d at 474; see United States v.
Hampton, 441 F.3d 284, 287 (4th Cir. 2006) (“If the district
court’s justifications for the variance sentence are tied to
§ 3553(a) and are plausible, we will uphold the sentence as
reasonable.” (internal quotations omitted)).
12
Here, the district court considered each § 3553(a) factor
carefully. In particular, when discussing “adequate deterrence and
[the need] to protect the public” under § 3553(a), the court
emphasized Waters’s membership in a “very violent gang” and the
“extent of [his] obstruction of justice”4 as meriting a variance.
J.A. 127-28. The court’s rationale in this regard was both
“reasonable” and “plausible,” and appropriately cites to factors
which set this case apart from the “heartland” of cases
contemplated by the Guidelines. See Koon v. United States, 518
U.S. 81 (1996). Although, as Waters contends, the court applied
the obstruction of justice enhancement when calculating his
original Guidelines range, it was not precluded from considering
“the cavalier method” in which Waters planned to have the witness
against him killed and the fact that he was only fortuitously
prevented from doing so by the actions of an informant in
determining that a variance was in order. J.A. 127-28. As the
district court said repeatedly, “there is obstruction of justice
and there is obstruction of justice.” Id. (emphasis added). The
discretion afforded to district courts to fashion the appropriate
4
Insofar as Waters challenges the district court’s decision to
give “excessive consideration” to these two factors, Supreme Court
precedent makes clear that “attach[ing] great weight” to a
particular factor or factors is “quite reasonabl[e]” so long as the
sentence imposed is “sufficient, but not greater than necessary,”
to accomplish the goals of sentencing advanced in § 3553. Gall,
128 S. Ct. at 602; 18 U.S.C. § 3553(a); see also Kimbrough, 128 S.
Ct. at 569-70.
13
sentence in each case is due precisely to situations such as this
where the enhancement provided by the Guidelines fails to capture
the gravity and flagrancy of the defendant’s actions. See Koon,
518 U.S. at 99 (“To ignore the district court’s special
competence--about the ordinariness or unusualness of a particular
case--would risk depriving [us] of an important source of
information, namely, the reactions of the trial judge to the
fact-specific circumstances of the case.” (internal quotations
omitted)).
D.
Waters’s final contention is that the combination of the
upward departure and the upward variance resulted in an “excessive”
and “substantively unreasonable” sentence, and “the reasons
provided by the district court were simply not so compelling to
justify the length of the sentence.” Appellant’s Br. at 20
(internal quotations omitted). Waters forges no specific
challenges to the district court’s reasoning, however, and instead
just emphasizes the sentence’s length and its deviation from the
original Guidelines range. It thus appears that Waters is inviting
us to engage in the type of mathematical calculation and appellate
second-guessing precluded by the current abuse of discretion
regime. See Gall, 128 S. Ct. at 597. 595 (“The fact that the
appellate court might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the
14
district court. . . . We also reject the use of a rigid
mathematical formula that uses the percentage of a departure as the
standard for determining the strength of the justifications
required for a specific sentence.”). On the facts before us, we
cannot say that the sentence imposed here--260 months, only 49
months greater than the upper end of the originally calculated
Guidelines range--is either unreasonable or unwarranted.
III.
Because we find no abuse of discretion in the district court’s
sentencing determinations, the judgment of the district court is
AFFIRMED.
15