United States v. Carlos Willis , 356 F. App'x 858 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0802n.06
No. 08-1971 FILED
Dec 17, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE EASTERN DISTRICT OF
) MICHIGAN
)
CARLOS DEWAYNE WILLIS, ) OPINION
)
Defendant-Appellant. )
)
BEFORE: NORRIS, CLAY, and SUTTON, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. Defendant Carlos Willis appeals from the sentence that
he received after pleading guilty to conspiring to distribute narcotics in violation of 21 U.S.C. § 846.
In his view, the district court erred in three respects: first, it miscalculated his criminal history and
failed to consider whether that history “over-represented the seriousness” of his criminal acts,
U.S.S.G. § 4A1.3(b)(1), p.s.; second, it failed to reduce the offense level based upon his minimal or
minor role in the conspiracy, U.S.S.G. § 3B1.2; and, third, it relied too heavily upon the sentencing
guidelines and did not pay sufficient attention to the sentencing considerations contained in 18
U.S.C. § 3553(a). For the reasons that follow, we hold that the sentence imposed was procedurally
and substantively reasonable. We therefore AFFIRM the judgment.
United States v. Willis
08-1971
I.
Willis was named in the first count of a four-count superseding indictment, which charged
several individuals with conspiring to “distribute approximately 9,500 pills of 3, 4
Methylenedioxymethamphetamine (“MDMA”) – ‘Ecstasy,’ a Scheduled I controlled substance, in
violation of Title 21 United States Code, Section 841(a)(1). All in violation of 21 U.S.C. § 846.”
According to portions of the pre-sentence report (“PSR”) to which Willis lodged no
objection, he traveled from St. Louis to Detroit with co-defendant Kinzell Stanciel and others to
purchase MDMA. Once the group arrived, they met at the supplier’s home to complete the purchase.
Unknown to the conspirators, in August 2007 a confidential informant had alerted law enforcement
to drug trafficking at a Best Western Hotel located in Allen Park, Michigan. Drug task force agents
established surveillance of the hotel on August 28 and observed three vehicles that appeared to be
involved in trafficking. Willis and an unidentified woman were in one vehicle. Stanciel and co-
defendant Mario Harrell were in separate vehicles. The officers saw Willis pass something through
his window to Harrell while their respective cars were stopped at a nearby gas station.
The officers later stopped the cars containing Stanciel and Willis. The search uncovered
9,300 tablets of MDMA in Stanciel’s possession. No contraband was found in the vehicle occupied
by Willis. Harrell was arrested later in the evening after he was observed meeting another individual
whom the officers suspected of being involved in the drug trafficking conspiracy.1
1 W illiam Elias Khami was identified as this individual and was charged with possession with intent to distribute
MDMA, 21 U.S.C. § 841(a), and of being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). The government
later concluded that Khami was not involved in drug trafficking and dismissed that count of the indictment.
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United States v. Willis
08-1971
After his arrest, Willis cooperated with the authorities and pleaded guilty without the benefit
of a written agreement. This cooperation is reflected in the three-level reduction to his offense level
for acceptance of responsibility. U.S.S.G. § 3E1.1. At his plea hearing, the government elicited
from Willis that he knowingly became involved in the conspiracy to purchase MDMA and that he
“traveled from St. Louis to Detroit for the purpose of serving as a lookout for Mr. Stanciel.”
At sentencing, the district court considered Willis’ criminal history as detailed in the PSR
as well as the objections to it lodged by defense counsel. We note at the outset that all of his prior
convictions occurred in Missouri. At the time of his arrest in this case, Willis was 29 years-old and
lived in St. Louis.
The first conviction used by the district court to calculate the appropriate criminal history
category occurred in April 1995 when Willis was only sixteen. He pleaded guilty to possession of
a controlled substance and received a sentence of two years of probation. Probation was suspended
in November 1995 when he violated its terms and an “intensive” probation was imposed in its place.
He violated its terms also and on May 15, 1997 his probation was revoked and he was sentenced to
seven years of incarceration. He was released in September 1997 and placed on probation for five
more years.
He violated probation again in May 1998. In September 1999, he was sentenced to seven
years of imprisonment with credit for time served. He was paroled on June 10, 2002. His parole for
this offense was suspended on February 3, 2006 and he was returned to prison. His sentence for this
offense expired on July 1, 2006.
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United States v. Willis
08-1971
The second conviction considered by the district court occurred on May 27, 1998, when
Willis was on parole from his first offense. It, too, was a drug possession offense. Willis was
sentenced to eight years of supervised release to be served concurrently with his other conviction.
As with his 1995 conviction, he was paroled on this offense on June 10, 2002, but violated it on
February 3, 2006. His sentence expired on April 12, 2007.
A third drug-trafficking offense, which Willis disputes, occurred on February 20, 2003. The
probation officer who prepared the PSR supplied the following additional information in an
addendum after Willis lodged an objection to consideration of this conviction:
The Probation Department has attached a copy of the Sentence and Judgment for this
conviction, Case Number 031-712. The arrest photo is also attached. The
defendant’s signature is affixed to the Judgment. The Probation Department has also
included a copy of the defendant’s signature obtained by the Probation Department
on March 17, 2008. The presentence report will remain as written and the Probation
Department will rely on the Court to resolve this issue.
Willis pleaded guilty to that crime in 2005 and received a ten-year sentence, which was suspended
and he was placed on three years of probation. The PSR notes that, due to an administrative error,
the Missouri Board of Probation and Parole never received the paperwork related to this offense and
defendant was never placed on active supervision.
His fourth and final conviction was on February 23, 2003 for operating a motor vehicle
without a license; he received 120 days with credit for time served.
The PSR calculated that defendant had a criminal history score of 12, placing him in category
V. However, at the sentencing hearing the government conceded that the two criminal history points
assessed for the motor vehicle conviction should not be counted and that the 1995 conviction for
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United States v. Willis
08-1971
cocaine possession should result in two points, not the three recommended in the PSR. As a result,
Willis’ criminal history category dropped to level IV.
The district court sentenced Willis to 121 months of incarceration, which was the low-end
of the advisory guidelines range of 121 to 151 months. The court also imposed three years of
supervised release, an assessment of $100, and recommended that Willis enter a comprehensive drug
treatment program while incarcerated. This timely appeal followed.
II.
A.
We begin by addressing defendant’s contention that his criminal history was miscalculated
and over-represents the seriousness of his criminal conduct. “[W]e . . . review a district court’s
calculation of the advisory sentencing Guidelines as part of our obligation to determine whether the
district court imposed a sentence that is procedurally unreasonable.” United States v. Bullock, 526
F.3d 312, 315 (6th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 46 (2007)). In doing so, we
review the district court’s factual findings for clear error and its legal conclusions de novo. Id. at
315-16; see also United States v. Angel, 576 F.3d 318, 320 (6th Cir. 2009). An improper criminal
history calculation represents a significant procedural error that, if committed, would constitute an
abuse of discretion requiring reversal. United States v. Shor, 549 F.3d 1075, 1077 (6th Cir. 2008).
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United States v. Willis
08-1971
Willis focuses on the fact that he has no “independent memory” of being sentenced on
September 2, 2005 for possession of a controlled substance.2 However, the district court found the
Sentence and Judgment from Missouri’s Twenty-Second Judicial Circuit, signed by Willis, to settle
the matter “loud and clear, beyond a reasonable doubt.” While his criminal history is admittedly
murky due in part to his numerous parole violations, we review this finding for clear error. We
detect none. The district court simply chose to credit a judicial document signed by defendant over
Willis’ own unsubstantiated recollection.3
A district court has the authority to depart downward if it finds that “reliable information
indicates that the defendant’s criminal history category substantially over-represents the seriousness
of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.”
U.S.S.G. § 4A1.3(b)(1), p.s. Willis contends that the district court should have applied this provision
to him because Missouri, where his previous crimes were committed, imposes relatively harsh
penalties for possession of small amounts of cocaine.
At sentencing the district court heard extensive argument concerning over-representation and
explicitly declined to reduce Willis’ criminal history category based upon its “exercise of discretion.”
The court then explained why, in its view, the departure was not warranted: “he has not . . . taken
advantage of the breaks that he got and has continued just to be involved in violations.” Where, as
2 He also states that he was being held in a detention facility in St. Louis at that time but offers no documentation to
support this claim. By contrast, the PSR indicates that he was paroled on June10, 2002 and that his parole was not
revoked until 2006. Defense counsel did not object to the paragraphs containing this information and thus we assume
that W illis was not in custody at the time of the disputed offense.
3 W e note in passing that W illis’ criminal history category would have remained at IV even if the district court had
agreed with him and not counted this disputed conviction when calculating his criminal history.
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United States v. Willis
08-1971
here, the district court recognizes that it has the discretion to depart downward but declines to do so,
we will not review its decision. See, e.g., United States v. Puckett, 422 F.3d 340, 345 (6th Cir.
2005), cert. denied, 126 S. Ct. 1935 (2006).
B.
The sentencing guidelines allow the district court to adjust the base offense level downward
if it concludes that defendant’s role in the offense was either minimal or minor. U.S.S.G. § 3B1.2.
The accompanying commentary explains that this provision “provides a range of adjustments for a
defendant who plays a part in committing the offense that makes him substantially less culpable than
the average participant.” U.S.S.G. § 3B1.2, comment., (n.3(A)). Like many other adjustments to
the base offense level included in the guidelines, “whether a defendant is entitled to a sentence
reduction pursuant to U.S.S.G. § 3B1.2 depends heavily on factual determinations, which we review
only for clear error.” United States v. Groenendal, 557 F.3d 419, 423 (6th Cir. 2009); see also
U.S.S.G. § 3B1.2, comment. (n.3(C) (this determination is “heavily dependent upon the facts of the
particular case”)).
At sentencing, the district court made these observations:
In looking at the facts, I had a chance to see them through the eyes of the various
Defendants including obviously, more specifically, Mr. Willis. I don’t find a minor
role or a minimal role here. I think he was into it and drove all the way up with the
others and wasn’t just a lookout but was very much – or a driver but was very much
involved in the transaction . . . .
Willis recites a number of considerations that he believes lead to a different conclusion:
Stanciel was the person targeted by the confidential informant; no narcotics were found in his car;
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United States v. Willis
08-1971
and he acted solely as a lookout who was paid a flat fee rather than a share of the profits of any
subsequent drug trafficking. Individuals whose role is limited remain eligible for relief under this
guidelines section:
[A] defendant who is convicted of a drug trafficking offense, whose role in that
offense was limited to transporting or storing drugs and who is accountable under §
1B1.3 only for the quantity of drugs the defendant personally transported or stored
is not precluded from consideration for an adjustment under this guideline.
U.S.S.G. § 3B1.2 comment. (n. 3(A)). In Willis’ view, a lookout is no more culpable than a person
who transports or stores drugs. Since the latter is eligible for the adjustment, he should be too.
As already explained, we accord great deference to the district court when we review
guidelines decisions that are “heavily dependent upon the facts of the particular case.” Even if we
discount the testimony of Harrell, who stated that he acted as the middleman in this transaction and
delivered the MDMA to “a guy named Willis,” there is still ample evidence to support the district
court’s decision not to grant this adjustment. It is undisputed that Willis traveled from St. Louis to
Detroit in order to participate in an MDMA trafficking conspiracy. He was present when the drugs
were exchanged and, according to the PSR, he “passed something through the car window to
Harrell.”4 In short, the district court’s conclusion that Willis was “more than a driver” is not clearly
erroneous and its denial of a downward departure based upon § 3B1.2 is affirmed.
C.
4 W hile defense counsel objected to the portion of the PSR that maintained that W illis arranged the drug transaction
with Harrell, she lodged no objection to this statement and we therefore deem it conceded.
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United States v. Willis
08-1971
Finally, Willis contends that his sentence was substantively unreasonable because the district
court relied too heavily upon the sentencing guidelines and did not pay sufficient attention to the
factors set out in 18 U.S.C. § 3553(a) when imposing its sentence.
At sentencing, counsel for defendant argued for a sentence of sixty months of incarceration
based on several factors: Willis’ relatively small-time drug-dealing; his own drug addiction; his
disrupted childhood; his financial support of his five children; and his employment as a janitor since
2007. The district court gave the following response:
The court has considered the 3553(a) factors, and just to put them on the record, the
nature and circumstances of the offense, it’s a serious offense. History and
characteristics of the Defendant, he does have prior convictions, multiple prior
convictions in drug cases. There’s a need for the sentence to reflect the seriousness
of the offense and promote respect for the law, provide just punishment and afford
adequate deterrence. Based upon what the Court’s seen, also a need to protect the
public from further crimes of the Defendant. The court also finds the Defendant is
in need of medical care through the drug treatment program offered by the Bureau
of Prisons . . . .
On appeal, Willis adds that his co-defendants received markedly lighter sentences, although they had
greater culpability. See 18 U.S.C. § 3553(a)(6) (need to avoid unwarranted sentencing disparities
among defendants with similar conduct).
Sentences within the advisory range are presumed to be reasonable. United States v. Vonner,
516 F.3d 382, 389-90 (6th Cir. 2008) (en banc). In fact, we have never found a sentence imposed
within the advisory guidelines range to be unreasonable, although we have upheld a sentence less
than the guidelines range. United States v. Grossman, 513 F.3d 592, 598 (6th Cir. 2008). As long
as the district court recognizes that the guidelines are advisory, considers the § 3553(a) factors, and
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United States v. Willis
08-1971
adequately explains the chosen sentence, we will reverse only if we detect an abuse of discretion.
Id. at 595.
Here, the district court considered “the history and characteristics of the defendant,” 18
U.S.C. § 3553(a)(1), and went so far as to tell defense counsel at the close of her presentation of
these factors that she was “doing an outstanding job on behalf of [her] client.” The sentence
imposed, which includes an extensive substance abuse program, reflects the district court’s
awareness that Willis’ life has been undermined by narcotics and the need to provide him with
appropriate “corrective treatment.” 18 U.S.C. § 3553(a)(2)(D). However, the court must also
balance a defendant’s personal characteristics against the seriousness of the offense, the need for
deterrence, and protection of the public. 18 U.S.C. § 3553(a)(2)(A)-(C). As we have noted, when
fashioning a sentence “district court judges are involved in an exercise of judgment, not a ritual.”
Grossman, 513 F.3d at 595. Here the district court provided an adequate explanation for the sentence
that it imposed, which is, in our view, substantively reasonable.
III.
The judgment is affirmed.
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