United States v. Williams, Brad O. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-1573, 07-1574, 07-1575 & 07-1576
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B RAD O. W ILLIAMS, S EVILLE W ILLIAMS,
C LINTON W ILLIAMS, and R ORY T UCKER,
Defendants-Appellants.
Appeals from the United States District Court
for the Central District of Illinois.
No. 06 CR 20032—Michael P. McCuskey, Chief Judge.
A RGUED S EPTEMBER 5, 2008—D ECIDED JANUARY 27, 2009
Before F LAUM, R OVNER, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. The four appellants in this
case, Brad Williams, Seville Williams, Clinton Williams,
and Rory Tucker, were charged with committing a series
of armed robberies over a four month period. Four
other individuals who were involved in the robberies
pled guilty and testified against the defendants at trial.
2 Nos. 07-1573, 07-1574, 07-1575 & 07-1576
All of the defendants were convicted and appeal their
convictions.
Rory Tucker raises several challenges to his conviction
and sentence. We reject his first argument regarding
improper joinder of defendants because the indictment
properly charged Tucker and the other defendants
with conspiracy to rob banks, financial institutions, and
a retail store. And because he failed to renew his motion
at the close of the evidence, we also reject his argument
that the district court improperly denied his motion to
sever. Next, contrary to Tucker’s assertion, we find that
the government presented sufficient evidence to support
the jury’s verdict even though the government proved
its case, in part, through the testimony of several co-
conspirators. Finally, we reject his arguments that his
sentence of 221 months’ imprisonment was erroneous
and unreasonable.
Because of the particularly violent nature of the rob-
beries he committed, which justifies the district court’s
sentence of life imprisonment, we reject Brad Williams’s
challenge to his sentence. However, we vacate Clinton
Williams’s sentence because the record does not demon-
strate that the district court considered his mental disabil-
ity as a mitigating factor.
We dismiss the appeal of Seville Williams. As pointed
out in his counsel’s Anders brief, there are no nonfrivolous
issues for appeal.
Nos. 07-1573, 07-1574, 07-1575 & 07-1576 3
I. BACKGROUND
According to the government’s evidence at trial, Brad
Williams committed a series of armed robberies from
January 3, 2006 through April 24, 2006. He was accompa-
nied and assisted by various people in these robberies,
some of whom participated in more robberies than others.
Tucker, for example, was involved only in the final rob-
bery, though he also helped plan another robbery that
was not executed.
Because Tucker is the only defendant challenging the
sufficiency of the evidence against him, the details of every
robbery are not necessary for this appeal. But for back-
ground, we provide a brief summary of the robberies
and their participants.
On January 3, 2006, Brad Williams, Seville Williams, and
two other masked men robbed a Walgreens store, striking
the attending pharmacist on the head and leaving with
money in a dark green bag. The robbery occurred around
2:30 a.m. and at 2:45 a.m., Brad Williams arrived at
Nathein Franklin’s apartment with Seville Williams and
two other men. The four men were carrying a dark green
bag and two revolvers. They changed in Franklin’s bath-
room and left the apartment.
On January 11, 2006, at approximately 5:40 p.m., Brad
Williams and Seville Williams forced their way inside
the Commonwealth Credit Union and held a gun to an
employee’s head while she unlocked the vault. They
emptied the contents of the vault and fled in Clinton
Williams’s car.
4 Nos. 07-1573, 07-1574, 07-1575 & 07-1576
On March 28, 2006, Brad Williams, Marion Jefferson, and
Tyron Thomas robbed the Heights Finance store in
Kankakee. Jefferson and Thomas, both wearing masks,
entered the store with guns while Brad stayed in the car.
Jefferson loaded a round into his gun and struck a male
employee in the side of his head, causing the gun to
discharge, when the employee told him there was no
safe. Thomas grabbed another employee and took her to
the front of the store, where she gave the men all of the
money the store had—$235.
On April 7, 2006, Jefferson and Thomas entered the
First Community Bank and Trust in Peotone, Illinois,
wearing masks and waving guns while Brad Williams
distracted the teller at the drive-through window. While
Thomas brought three tellers into a back room, Jefferson
pointed his gun at the assistant cashier and demanded
that she put all the money from the safe into a bag
he gave her. After Thomas made a phone call, Clinton
Williams picked Thomas and Jefferson up outside the
bank.1
In April 2006, Tucker conspired with Jefferson, Thomas,
Collins, Brad Williams, Clinton Williams, Riley, and others
to rob a bank in Chicago Heights but the robbery was
aborted before anything happened because someone
froze. A few days later, the men tried again in Rantoul,
this time successfully and without the person who
thwarted the prior attempt. Collins, Jefferson, Thomas,
1
The Peotone robbery was not charged as a substantive
count because of jurisdictional issues.
Nos. 07-1573, 07-1574, 07-1575 & 07-1576 5
and Brad Williams entered the credit union first while
Riley and Clinton Williams remained in cars outside. All
of the men wore light blue ski masks. Tucker waited
outside the credit union for most of the robbery and went
in for less than 45 seconds at the very end. (The surveil-
lance recording shows five robbers inside the bank at
that time.) Tucker had a gun, as did Collins and Jefferson.
As Tucker entered the building, he called out, “Let’s go.”
Police arrived on the scene and the robbers fled. Collins
and Brad Williams were arrested after police pursuit.
Clinton Williams was arrested in the driver’s seat of one
getaway car. Tucker jumped into the back seat of the
other getaway car (which Riley was driving) but Riley
was stopped and arrested. Tucker hid in the back seat
for an hour until a crime scene investigator noticed him.
Jefferson fled and hid for days until he was arrested.
Thomas ran to a nearby carwash and jumped into a car,
told the people in the car he had a gun, and directed
them to drive out of the area. He was arrested the next day.
Only four of the eight defendants went to trial. Jefferson,
Thomas, Collins, and Riley pled guilty and testified for
the government. Tucker, Brad Williams, Clinton Williams,
and Seville Williams were tried and found guilty. Tucker
testified on his own behalf.
The district court sentenced Tucker to 221 months’
imprisonment, Brad Williams to life imprisonment,
Clinton Williams to 552 months’ imprisonment, and Seville
Williams to 546 months’ imprisonment. All four defen-
dants appealed.
6 Nos. 07-1573, 07-1574, 07-1575 & 07-1576
II. ANALYSIS
A. Rory Tucker
1. No improper joinder
Tucker maintains that because of his relatively minor
role in the conspiracy, he should not have been tried
together with his co-defendants. He argues that the
joinder of the defendants was improper under Rule 8(b)
of the Federal Rules of Criminal Procedure and that
the district court improperly denied his motion to sever.
We review a claim of misjoinder de novo, focusing on
the face of the indictment rather than the evidence ad-
duced at trial. United States v. Ross, 510 F.3d 702, 710 (7th
Cir. 2007). Federal Rule of Criminal Procedure 8(b)
permits joinder of defendants if the defendants “are
alleged to have participated in the same act or transaction,
or in the same series of acts or transactions, constituting
an offense or offenses.” We have held that “Rule 8(b)
is satisfied when the defendants are charged with crimes
that well up out of the same series of such acts, but they
need not be the same crimes.” United States v. Warner, 498
F.3d 666, 699 (7th Cir. 2007) (internal quotation marks
omitted). A conspiracy charge combined with substantive
counts arising out of that conspiracy is a proper basis
for joinder under Rule 8(b). United States v. Stillo, 57 F.3d
553, 557 (7th Cir. 1995).
The final indictment in this case contained ten counts. It
charged all of the defendants, including Tucker, with
conspiracy to commit armed robbery (Count 1). The
conduct in Counts 2 through 10 relates to the charges in
the conspiracy count. Although the government did not
Nos. 07-1573, 07-1574, 07-1575 & 07-1576 7
charge Tucker with every one of those counts (Counts 2
through 10),2 the indictment relates the charges against
Tucker to the charges against the other defendants
through the conspiracy charge. So the conspiracy charge
is a proper basis for joinder because it sufficiently links
the various robberies for Rule 8(b) purposes. See, e.g.,
Warner, 498 F.3d at 699 (no improper joinder where con-
duct related to charges in the conspiracy count); United
States v. Dounias, 777 F.2d 346, 348 (7th Cir. 1985).
Tucker relies on our decision in United States v. Velasquez,
772 F.2d 1348, 1352 (7th Cir. 1985) to argue that his
robbery was not related to the other robberies com-
mitted by Brad Williams. In Velasquez, which was a
cocaine trafficking case, we found misjoinder of one
count because the indictment did not relate the charge in
that count to any of the charges against the other defen-
dants named in the indictment. The charge was against
one defendant for heroin violations unrelated to the
cocaine trafficking charges. Velasquez does not help Tucker.
Unlike in that case, all of the conduct in Counts One
through Ten relates to the charges in the conspiracy
count, which was charged against both Brad Williams
and Tucker.
Even if we found that misjoinder occurred, Tucker’s
argument fails because he cannot show actual prejudice.
See Ross, 510 F.3d at 712; Stillo, 57 F.3d at 557 (misjoinder
2
Along with all of the defendants except for Seville Williams,
Tucker was charged with armed bank robbery on April 24,
2006 (Count 8), and carrying a firearm during a crime of vio-
lence on April 24, 2006 (Count 9).
8 Nos. 07-1573, 07-1574, 07-1575 & 07-1576
must result in actual prejudice). There was sufficient
evidence to convict Tucker (more on this below) and the
district court gave a limiting instruction both before the
presentation of the evidence and again at closing argu-
ments that the jury should consider the evidence
regarding each defendant separately. Such instructions
are normally sufficient to cure any possibility of prej-
udice. Cf. Ross, 510 F.3d at 711-12 (joinder of counts not
prejudicial where there was “overwhelming evidence” of
defendant’s guilt and district court gave limiting instruc-
tions).
Tucker’s argument regarding his motion to sever fails
as well. We review the denial of a motion to sever for
an abuse of discretion but we have held that “[a] motion
for severance is typically waived if it is not renewed at
the close of evidence, primarily because it is then that
any prejudice which may have resulted from the joint
trial would be ascertainable.” United States v. Phillips, 239
F.3d 829, 838 (7th Cir. 2001); Ross, 510 F.3d at 710. Tucker
filed a motion to sever pursuant to Federal Rule of Crimi-
nal Procedure 14 prior to the trial but he did not renew
the motion at the close of trial, nor does he offer any
reason for his failure to do so. Tucker is therefore pre-
cluded from now arguing that the court erred in denying
his motion to sever.
2. The government presented sufficient evidence to
support the jury’s verdict
Next, Tucker argues that the evidence against him was
insufficient to convict him of conspiracy, armed bank
robbery, and use of a firearm during an armed bank
Nos. 07-1573, 07-1574, 07-1575 & 07-1576 9
robbery. Where the sufficiency of the evidence to
support a conviction is challenged, “we review the evi-
dence in the light most favorable to the verdict, and will
reverse only if no rational trier of fact could have found
him guilty of the charges beyond a reasonable doubt.”
United States v. DeSilva, 505 F.3d 711, 715 (7th Cir. 2007).
We do not weigh the evidence or second-guess the jury’s
credibility determinations. United States v. Gardner, 238
F.3d 878, 879 (7th Cir. 2001).
The evidence showed that Tucker helped plan the
robbery of the Rantoul credit union, carried a gun with
him into the credit union on April 24, 2006, and that he
had planned and participated in an earlier botched rob-
bery. He was found hiding in the backseat of one of the
getaway cars outside the credit union. Tucker maintains
that he had nothing to do with the robbery and the gov-
ernment’s evidence was insufficient because none of the
government’s witnesses who placed him at the scene
of the crime was credible. It is true that of the govern-
ment’s witnesses (friends and acquaintances of Brad,
Clinton, and Seville Williams; officers; victims of the
crimes and witnesses of the crime), the only people who
testified regarding Tucker’s role in the Rantoul robbery
were his co-defendants Jefferson, Thomas, Collins and
Riley. Tucker points out that these witnesses are all
convicted felons with a history of lying, and he con-
tends that their testimony was motivated by their own
individual interest. But Tucker had the opportunity to,
and actually did, cross-examine these witnesses, and the
jury chose to believe them nonetheless.
10 Nos. 07-1573, 07-1574, 07-1575 & 07-1576
Furthermore, Tucker testified on his own behalf and
had the opportunity to convince the jury that his co-
defendants were lying. Tucker testified that he was
driving around Rantoul with Riley when Riley said he had
to run to a friend’s house. Riley parked the car in an
alleyway and walked out of Tucker’s view for six minutes.
When Riley jogged back to the car, got in, and tried to
drive away, police officers surrounded the car and
pulled out guns. Tucker jumped into the backseat to
avoid being shot and remained there because he did not
know what was happening.
The jury, after hearing all of the evidence from both
sides, found that Tucker participated in the armed robbery.
On the evidence in this record, the jury was entitled to
reach that conclusion, and we will not disturb the jury’s
determination on the basis of credibility issues in these
circumstances. Cf. United States v. Roberts, 534 F.3d 560,
569 (7th Cir. 2008) (“[W]e reverse credibility determina-
tions on appeal only under exceptional circumstances,
such as where it was physically impossible for the
witness to observe that which he claims occurred, or
impossible under the laws of nature for the occurrence
to have taken place at all.”).
3. Tucker’s sentence
We turn to Tucker’s sentence. Tucker was sentenced to
221 months’ imprisonment, which was comprised of sixty
months for Count One and 137 months for Count Eight
(to be served concurrently with each other), and a manda-
tory eighty-four month sentence for Count Nine (to be
Nos. 07-1573, 07-1574, 07-1575 & 07-1576 11
served consecutively to the terms of imprisonment for
Counts One and Eight). The court’s sentence for
Counts One and Eight was at the top of the advisory
guidelines range of 110 to 137 months, which was calcu-
lated using an offense level of 28 and a criminal history
category of IV.
The probation officer who prepared Tucker’s presentence
investigation report (“PSR”) used the November 2006
Sentencing Guidelines to calculate Tucker’s offense level
in the following manner. He began by grouping Counts
One and Eight together pursuant to United States Sen-
tencing Guideline (U.S.S.G.) § 3D1.2(b). The base offense
level for robbery is 20. U.S.S.G. § 2B3.1. The probation
officer added two points because the robbery involved
taking the property of a financial institution, two points
because two of the victims had suffered bodily injury,
two points because the offense involved carjacking,
and two points for obstruction of justice under U.S.S.G.
§ 3C1.1. This resulted in an offense level of 28.
Tucker objected to the PSR on several grounds. After
hearing argument, the district court overruled Tucker’s
objections and determined the offense level to be 28.
Tucker now challenges the district court’s ruling on
several of his objections. We find none of these
challenges persuasive.
a. Obstruction of justice enhancement not
improper
Tucker maintains he should not have received an en-
hancement pursuant to U.S.S.G. § 3C1.1, which provides
12 Nos. 07-1573, 07-1574, 07-1575 & 07-1576
for a two-level enhancement for the obstruction of justice.
We review an obstruction of justice finding for clear error,
giving deference to the district court’s application of the
guidelines to the facts. United States v. Arceo, 535 F.3d 679,
686-87 (7th Cir. 2008). A district court may impose the
enhancement for perjury. U.S.S.G. § 3C1.1, cmt. 4(b).
Perjury occurs “when a witness testifying under oath
gives false testimony about a material matter with the
willful intent to provide false testimony, instead of as a
result of confusion, mistake, or faulty memory.” United
States v. Price, 516 F.3d 597, 607 (7th Cir. 2008) (citing
United States v. Dunnigan, 507 U.S. 87, 94 (1993)). However,
section 3C1.1 is not intended to punish a defendant
for choosing to exercise his right to testify. See U.S.S.G.
§ 3C1.1, cmt. 2.
As discussed above, Tucker testified that he had
nothing to do with the robbery on April 24, and that he
had simply been driving around Rantoul with Riley that
day. His explanation for his presence at the scene of the
robbery was that he was waiting in the car for Riley in an
alleyway. He thought Riley was visiting a friend and was
surprised to see Riley “jog” up to the car followed by
police. When the police drew their guns, Tucker jumped
into the backseat and hid. When asked why he remained
in the backseat of the car for almost an hour, Tucker
explained that he was afraid and figured the police
would search the car anyway.
The district court determined that Tucker committed
perjury at trial because his testimony was incredible
when contrasted with the government’s evidence regard-
Nos. 07-1573, 07-1574, 07-1575 & 07-1576 13
ing his role in the robbery. The court stated it was not
simply finding that Tucker committed perjury based
upon his denial of guilt, but that Tucker had willfully
and intentionally attempted to obstruct justice by
testifying untruthfully at trial. The district court relied on
its observations of Tucker’s demeanor and manner at
trial, and compared Tucker’s testimony to that of his co-
defendants, the testimony from the other witnesses, and
the footage from the surveillance cameras, to find that
Tucker did not testify truthfully at trial.
Tucker argues that the application of the enhancement
in these circumstances creates a “chilling effect” on a
defendant’s right to testify in his own defense. But we
have already rejected the argument that the right to
testify includes the right to lie on the stand. See United
States v. Jackson, 300 F.3d 740, 749 (7th Cir. 2002) (“A
defendant’s right to testify does not include the right to
commit perjury.”) (quoting Dunnigan, 507 U.S. at 96);
United States v. Emerson, 128 F.3d 557, 563 (7th Cir. 1997)
(Ҥ 3C1.1 is not intended to punish a defendant for ex-
ercising his right to testify, but the guideline does
punish those who commit perjury when denying their
guilt.”). The district court’s conclusion that Tucker com-
mitted perjury on the stand is not clearly erroneous.
b. Carjacking enhancement not improper
Tucker also takes issue with the enhancement he re-
ceived under U.S.S.G. § 2B3.1(b)(5), which provides for a
two-level enhancement if a robbery involves carjacking.
Although Tucker himself did not participate in the
14 Nos. 07-1573, 07-1574, 07-1575 & 07-1576
carjacking, the guidelines provide that a defendant may
be held responsible for “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). Whether a co-
conspirator’s act was reasonably foreseeable is a factual
finding we review for clear error. United States v. Polichemi,
201 F.3d 858, 866 (7th Cir. 2000).
Tucker conspired with six other men to rob the credit
union in Rantoul. Although the plan involved two
getaway cars (Clinton Williams and Riley served as the
getaway drivers and stayed in the cars), the robbery
did not go as planned because someone called the police.
When the police arrived, all of the robbers fled and at-
tempted to hide. Tucker himself hid in the backseat of one
getaway car but Riley was not able to drive away. Tucker’s
co-conspirator Thomas ran to a nearby carwash, got into
a car, and directed the occupants to drive him away.
When the driver asked Thomas to get out, Thomas
replied, “Don’t make me pull out my mag.” The district
court found that Thomas’s actions were reasonably fore-
seeable to Tucker.
There is no evidence that Tucker knew Thomas would
commit the act of carjacking (indeed, the plan was to
escape in getaway cars), so it is arguable that Thomas’s
actions were not foreseeable to him. But we have held in
another robbery case that co-conspirators do not have to
agree to specific conduct in order to be held liable (for
U.S.S.G. § 1B1.3(a)(1)(B) purposes) for each other’s
conduct so long as the conduct was reasonably foreseeable
in carrying out the robbery. See United States v. Dorsey,
209 F.3d 965, 967-68 (7th Cir. 2000) (co-conspirator’s use
Nos. 07-1573, 07-1574, 07-1575 & 07-1576 15
of firearms and physical restraint of a person committed
during the course of a robbery was reasonably
foreseeable to defendant who funded a robbery but did
not participate in the robbery or know any details about
its execution). In United States v. Cover, 199 F.3d 1270 (11th
Cir. 2000), a case almost factually indistinguishable from
this one, the Eleventh Circuit upheld a district court’s
finding that a carjacking by a co-conspirator was fore-
seeable to a defendant for the purpose of U.S.S.G.
§ 1B1.3(a)(1)(B) even if the plan was to escape in get-
away cars.
The district court relied on Cover to find that it was
reasonably foreseeable to Tucker that carjacking might
occur, given that “a person who enters a bank robbery with
firearms and other people intending to do whatever is
necessary to effect that robbery” would “want to get away
without being apprehended.” While the district court’s
reasoning could have been more particularized, its deter-
mination that Tucker should have known a carjacking
could occur is supported by the circumstances of the
robbery. Cf. United States v. Atwater, 272 F.3d 511, 512 (7th
Cir. 2001) (reversing application of enhancement where
district court made no specific findings based on defen-
dant’s case and concluded that use of firearm in robbery
was reasonably foreseeable solely because judge had
“never heard of a bank robbery without a firearm”).
Furthermore, in his one-paragraph argument, Tucker
does not provide any authority demonstrating that this
16 Nos. 07-1573, 07-1574, 07-1575 & 07-1576
determination is erroneous.3
c. Criminal history category not improperly
calculated
Finally, Tucker argues that the district court erred in
calculating his criminal history category. The district court
added two criminal history points to Tucker’s criminal
history category pursuant to U.S.S.G. § 4A1.1(b), which
provides a two-point increase for “each prior sentence
of imprisonment of at least sixty days.”
In 2005, Tucker pleaded guilty to battery in state court.
He was sentenced to jail “with credit for time served
from 9/8/04 to 2/3/05.” The district court added two
3
We also find no error in the district court’s finding that
Tucker possessed a firearm with a magazine that extended
beyond the normal end of the magazine well. As an initial
matter, we do not understand why this finding matters since it
had no bearing on Tucker’s base offense level or sentence.
Because the jury convicted him of carrying a firearm during
a crime of violence as charged in Count Nine, his possession or
use of a firearm was excluded from the guidelines calculations
for the robbery offense. To the extent that it matters, however,
Tucker has not demonstrated that the district court’s finding
is clearly erroneous. The district court relied on the testimony
of Marion Jefferson, whom the court found to be credible, and
that credibility determination is entitled to great deference. See
United States v. Bennett, 461 F.3d 910, 912 (7th Cir. 2006) (“The
factual findings of the district court will not be overturned
unless the reviewing court is left with the definite and firm
conviction that a mistake has been made.”).
Nos. 07-1573, 07-1574, 07-1575 & 07-1576 17
points to Tucker’s criminal history category based on this
term of imprisonment, which was more than sixty days.
Tucker maintains that this calculation was improper
because he was in jail as a result of his inability to post
bond, and the plea in the battery case coincided with the
time that he was held in custody due to his inability to
post bond. Therefore, Tucker maintains that using the
sentence for his battery conviction to increase his
criminal history category penalizes him for his indigency
because he was too poor to post bond. The state court
judgment, however, clearly states that Tucker’s sen-
tence for the battery conviction was the time he spent in
prison from September 2004 until February 2005. Tucker
raises no constitutional challenge and there is no
exception in the guidelines for a sentence of imprison-
ment that is based on credit for time served due to a
defendant’s inability to post bond. Therefore, the district
court’s application of the guidelines was not clearly
erroneous.
B. Brad Williams
Brad Williams’s sole argument on appeal is that his
sentence was unreasonable. The district court sentenced
him to a life sentence, which was at the top of his guide-
lines range of 1344 months to life.4 He does not raise any
objection to the calculation of his sentence, and we pre-
4
We note that the mandatory minimum sentence he could
have received was 984 months, or eighty-two years.
18 Nos. 07-1573, 07-1574, 07-1575 & 07-1576
sume that a sentence within the properly calculated
guidelines range is reasonable. Rita v. United States, 127
S. Ct. 2456, 2462-68 (2007); United States v. Sachsenmaier,
491 F.3d 680, 684 (7th Cir. 2007).
Brad Williams contends that his sentence was greater
than necessary under 18 U.S.C. § 3553(a). In arriving at its
sentence, the district court considered the letters from
victims of the robberies, many of whom stated that they
continue to suffer as a result of their experiences, and the
court noted that there was nothing in Brad Williams’s
character and history that merited leniency. In the end,
the district court concluded that “the only appropriate
sentence, the only message to send to the other young
Brad Williamses” was life. In light of the particularly
violent nature of the robberies, the district court decided
that a life sentence was appropriate to meet the goals
expressed in 18 U.S.C. § 3553. That decision was not
unreasonable.
C. Clinton Williams
Clinton Williams also challenges his sentence on appeal,
and like Brad Williams, he does not raise any objection to
the calculation of the sentence. Williams, who is thirty-six
years old, has lived with his mother most of his life. He
has an estimated IQ of 72, which suggests borderline
mental retardation. See, e.g., Mendez v. Barnhart, 439 F.3d
360, 361 (7th Cir. 2006). And according to the PSR, Clinton
Williams has been receiving disability benefits since the
age of ten because he has been diagnosed with “autistic
disorders and other pervasive developmental disorders.”
Nos. 07-1573, 07-1574, 07-1575 & 07-1576 19
As a teenager, he was institutionalized at Madden
Hospital in Chicago, Illinois for two to three years. His
youngest brother is Brad Williams.
At the sentencing hearing, Clinton Williams’s attorney
argued for a sentence on the low end of the guidelines
range due to Clinton Williams’s mental state. Counsel
presented evidence that Clinton Williams operates at a
reduced intellectual capacity and argued that he was
mentally “slow,” which caused him to be particularly
susceptible to manipulation by his brother, Brad Williams.
Counsel noted the minimal role Clinton played in the
robberies, which was limited to serving as the getaway
driver in three of the robberies. He never entered any of
the banks or physically harmed any people inside, unlike
his co-conspirators. Counsel argued that the combination
of these circumstances not only presented a mitigating
factor not accounted for in the guidelines, but also justified
treating Clinton Williams differently from his co-conspira-
tors.
The government did not contest the evidence of Clinton
Williams’s disability, conceding at the hearing that Clinton
Williams had a “mental condition that is below normal”
and that he “has had difficulty with that mental condi-
tion over the years.” Furthermore, the government stated
that there was no question that Brad Williams “manipu-
lated” Clinton Williams to commit the crimes.
The district court addressed Clinton Williams’s learning
disability by relying on the report of Dr. Jason V. Dana,
which the district court quoted at length. Dr. Dana was
appointed by a magistrate judge to conduct an evaluation
20 Nos. 07-1573, 07-1574, 07-1575 & 07-1576
of Clinton Williams while he was at the Metropolitan
Correctional Center. Dr. Dana concluded that Clinton
Williams had made “an intentional and concerted effort
to minimize his functional ability and to present himself
as more cognitively impaired than is truly the case.” In
other words, Dr. Dana thought Clinton was exaggerating
his disability. The district court agreed and sentenced
Clinton Williams to 552 months’ imprisonment, which is
at the top of the advisory guidelines range of 519 to 552
months.5
Section 3553(a) directs a district court to consider the
history and characteristics of the defendant among the
factors it weighs in determining a reasonable sentence.
We have held that while a “district court may pass over
in silence frivolous arguments for leniency,” where a
defendant presents an argument that is “not so weak as
not to merit discussion,” a court is required to explain
its reason for rejecting that argument. United States v.
Schroeder, 536 F.3d 746, 755 (7th Cir. 2008) (quoting United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)).
There are two problems with the district court’s analysis.
First, the district court focused solely on Dr. Dana’s
conclusion that Clinton was attempting to make his
disability seem worse than it truly was. But the court’s
5
The bulk of this sentence, as is the case with all the defendants
in this case, is driven by the mandatory minimum sentences
set forth by 18 U.S.C. § 924(c). In Clinton Williams’s case,
for example, 384 months of his sentence was based on section
924(c).
Nos. 07-1573, 07-1574, 07-1575 & 07-1576 21
observation that Clinton Williams was exaggerating his
mental and intellectual disabilities is not dispositive of
whether he was mentally disabled or whether his actual
disability justified a lower sentence. See, e.g., Schroeder, 536
F.3d 746, 756 (“The court was required to consider
Schroeder’s family circumstances argument and provide
an adequate analysis of how much weight, if any, it
should command.”). All of the evidence in the record
(including the government’s own concessions) demon-
strates that Clinton Williams did suffer from some form
of mental disability. Indeed, Dr. Dana himself notes that
Clinton had an “estimated” IQ of 72.6
Second, the district court did not take into account the
combination of Clinton Williams’s diminished capacity
along with the fact that the ringleader was his brother, and
the exacerbating effect that might have on his ability to
think for himself. We remand Williams’s case and on
remand, the district court should consider his actual
disability and the combination of his disability with his
susceptibility to manipulation by his brother Brad.
D. Seville Williams
Finally, we address Seville Williams’s appeal. Seville
Williams’s counsel moves to withdraw because counsel
6
Dr. Dana’s report is not in the appellate record so we do
not know the basis for this estimate. We note that to the extent
it is possible Clinton Williams has an even lower IQ, that
might counsel in favor of a lower sentence.
22 Nos. 07-1573, 07-1574, 07-1575 & 07-1576
discerns no nonfrivolous basis for appeal. See Anders v.
California, 386 U.S. 738 (1967). Seville Williams opposes
counsel’s motion. We confine our review to the potential
issues identified by Seville Williams and those identified
in counsel’s brief. See United States v. Magers, 535 F.3d 608,
609 (7th Cir. 2008).
Counsel considers whether the evidence was sufficient
to identify Seville Williams as a participant in two of the
robberies. Unlike the evidence against the other defen-
dants, the government’s evidence against Seville
Williams was largely circumstantial evidence.
The government connected Seville Williams to the
January 3 robbery through the testimony of Nathein
Franklin. Franklin, who supplied Brad Williams with the
code for the robbery of the Walgreens store, testified that
he saw Seville with Brad immediately after the robbery.
Seville, Brad, and two others went to Franklin’s house
after the robbery with a bag of money and changed out
of their dark clothing.
As for the January 11 robbery, the government relied on
the testimony of two inmates. Seville Williams was ar-
rested on January 19. The inmates testified that Seville
Williams had told each of them separately that he had
robbed a currency exchange using a gun.7 Both inmates
7
In addition to the testimony of Derrick Grace, the govern-
ment introduced a tape recorded conversation between Grace
and Seville Williams. Seville argues that the introduction of
this recording violated his constitutional rights. This is a
(continued...)
Nos. 07-1573, 07-1574, 07-1575 & 07-1576 23
testified that Seville had described the robbery as
involving a female employee, and one of the inmates
testified that Seville told him the robbery occurred around
closing time. Juamual De-Quin Pitt testified that Seville
claimed to have robbed the place of around $300,000.
These details matched up with the details of the January 11
robbery, which involved a female employee at a credit
union who testified that one of the robbers held a gun
to her head at closing time while she unlocked the
vault and emptied it of $313,785 in cash.
The evidence against Seville Williams is weaker than
the evidence against his co-conspirators. Nevertheless, as
discussed above, sufficiency of the evidence challenges
face a rigorous standard of review, and there was suf-
ficient circumstantial evidence by which a jury could
convict Seville. See, e.g., United States v. Galati, 230 F.3d 254,
258 (7th Cir. 2000) (“[I]t is well established that a jury’s
verdict may rest solely upon circumstantial evidence.”)
(internal quotation marks omitted). There is no non-
frivolous argument Seville Williams could make re-
garding the sufficiency of the evidence.
Counsel’s remaining potential issues do not merit
much discussion. The government presented sufficient
evidence to support the jury’s finding that Seville
Williams was a member of the conspiracy. And we see
7
(...continued)
frivolous argument because Grace consented to wear a wire
and record his conversation with Seville. See United States
v. Eschweiler, 745 F.2d 435, 437 (7th Cir. 1984).
24 Nos. 07-1573, 07-1574, 07-1575 & 07-1576
no reason to find his sentence unreasonable. The district
court properly calculated the sentencing guidelines
range and considered the section 3553(a) factors. Seville
Williams did not object to the PSR. The district court,
after considering the violent nature of the two robberies
committed by Seville, sentenced him to 546 months’
imprisonment, which is at the top of the advisory guide-
lines range. That decision was not unreasonable.
Accordingly, we grant Seville Williams’s counsel’s
motion to withdraw and dismiss the appeal.
III. CONCLUSION
The judgment of the district court is AFFIRMED as to
Rory Tucker and Brad Williams. Clinton Williams’s
sentence is VACATED and his case is REMANDED for
further proceedings consistent with this opinion. Seville
Williams’s counsel’s motion to withdraw is GRANTED
and his appeal is DISMISSED.
1-27-09