United States v. John Williams ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1907
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
John L. Williams, *
*
Appellant. *
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Submitted: November 18, 2009
Filed: March 4, 2010
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Before MELLOY, BEAM and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
In 2007, John Williams and several co-conspirators carried out three bank
robberies in the Kansas City, Missouri area. Williams was eventually charged with
three counts of bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and three
counts of using a firearm during a crime of violence (viz., bank robbery), in violation
of 18 U.S.C. § 924(c)(1)(A).1 Williams elected to go to trial, and the jury found him
guilty on all counts.
The district court2 sentenced Williams to 92 months’ imprisonment on each of
the bank robbery counts and ordered those terms to run concurrently. The court then
sentenced Williams to 84 months’ imprisonment on the first firearm count, which is
the statutory minimum for a § 924(c)(1)(A) offense if the firearm is “brandished,” see
§ 924(c)(1)(A)(ii). And the court sentenced Williams to 300 months’ imprisonment
on each of the two remaining firearm counts, which is the statutory minimum for a
“second or subsequent conviction” under § 924(c)(1)(A), see § 924(c)(1)(C)(i). The
sentences on the firearm counts cannot run concurrently with any other sentence, see
§ 924(c)(1)(D)(ii), so the court ordered the 84-month sentence and both of the 300-
month sentences to run consecutively to the 92-month sentence and to one another,
resulting in a total term of 776 months’ imprisonment. Williams appeals, challenging
the overall sentence on procedural and substantive grounds.
Williams first argues that the district court committed significant procedural
error. In particular, Williams asserts that the court treated the advisory sentencing
guidelines as mandatory and failed to consider all of the factors set out in 18 U.S.C.
§ 3553(a). See Gall v. United States, 552 U.S. 38, 51 (2007) (listing examples of
“significant procedural error,” including “treating the Guidelines as mandatory” and
“failing to consider the § 3553(a) factors”). Since Williams—who chose to discharge
his trial counsel and represent himself at sentencing—did not object to the district
court’s application of the guidelines or to the court’s consideration of the § 3553(a)
1
Technically, Williams was charged with aiding and abetting some of the
offenses. Because a person who aids and abets the commission of a federal offense
is punishable as a principal, 18 U.S.C. § 2, these details do not affect our analysis.
2
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
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factors, we review only for plain error. See, e.g., United States v. Phelps, 536 F.3d
862, 865 (8th Cir. 2008), cert. denied, 555 U.S. ---, 129 S. Ct. 1390 (2009).
The record shows that Williams’s first argument is without merit. The district
court determined that the advisory sentencing guidelines range on the bank robbery
counts was 92 to 115 months. The court then noted that on the firearm counts,
consecutive sentences of 84 months, 300 months, and 300 months were required by
statute. See § 924(c)(1)(A)(ii), (C)(i), (D)(ii). The court correctly acknowledged,
“[t]he only issue that I have any real discretion on is the guideline range sentence of
92 to 115 months.” That statement does not show that the district court felt bound to
sentence Williams within the guidelines range; just the opposite, the statement
confirms that the court understood the scope of its sentencing discretion with respect
to the bank robbery counts. An express statement confirming the court’s awareness
of its discretion to vary from the guidelines is not strictly necessary, as we have made
clear that “Booker, Rita, and Gall were hardly obscure decisions likely to have been
overlooked by federal sentencing judges, and we presume that district judges know
the law.” See United States v. Gray, 533 F.3d 942, 943 (8th Cir. 2008) (citation and
internal quotation marks omitted). In any event, the context makes clear that the
district court used the words “only” and “real” to contrast the court’s broad discretion
with respect to the bank robbery counts and its limited discretion with respect to the
firearm counts, which carried mandatory minimum sentences prescribed by statute.
The district court did not treat the guidelines as mandatory.
Turning to the district court’s discussion of the § 3553(a) factors, we have held
that a “mechanical recitation” of the factors is unnecessary, “particularly when a judge
elects simply to apply the advisory guideline range to a particular case.” United States
v. Zastrow, 534 F.3d 854, 855 (8th Cir. 2008) (quoting United States v. Todd, 521
F.3d 891, 897 (8th Cir. 2008)). Here, the need for a lengthy discussion was also
lessened by the defendant’s failure to make an argument regarding the appropriate
sentence. Williams not only failed to present “nonfrivolous reasons for imposing a
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different sentence,” he presented no reasons at all. See Rita v. United States, 551 U.S.
338, 357 (2007) (noting that where a defendant “presents nonfrivolous reasons for
imposing a different sentence, . . . the judge will normally . . . explain why he has
rejected those arguments”). Yet the record shows that the district court did in fact
address many of the § 3553(a) factors, including the nature and circumstances of the
offense, the history and characteristics of the defendant, the need for the sentence
imposed to afford adequate deterrence to criminal conduct and to protect the public
from further crimes of the defendant, the kinds of sentences available, and the need
to avoid unwarranted sentence disparities among similarly situated defendants. See
§ 3553(a)(1), (2)(B), (2)(C), (3), (6). The court’s specific reference to these factors
does not mean that it failed to consider the others. See United States v. Molina, 563
F.3d 676, 679 (8th Cir. 2009). Thus, we conclude that Williams has failed to show
a significant procedural error, much less a plain error affecting his substantial rights.
See Phelps, 536 F.3d at 865 (stating that “[u]nder plain error review, the defendant
must show: (1) an error; (2) that is plain; and (3) that affects substantial rights”).
Williams next argues that his overall sentence is substantively unreasonable.
Specifically, Williams contends that the district court “did not adequately consider
whether the 57 years [684 months] already mandated by statute [on the firearm
counts] . . . was sufficient to meet the objectives of § 3553.” Ordinarily, “[w]e review
a defendant’s challenge to the district court’s weighing of the relevant factors for
abuse of discretion, regardless of whether the defendant made an after-the-fact
objection to the length of the sentence that the court imposed.” Molina, 563 F.3d at
679 (citing United States v. Miller, 557 F.3d 910, 916 (8th Cir. 2009)).
Williams’s principal contention on this point—that the district court failed to
give adequate weight to the severity of the statutory minimum sentences for the
firearm counts—is foreclosed by our decision in United States v. Hatcher, 501 F.3d
931 (8th Cir. 2007). There, we held that the severity of a “mandatory consecutive
sentence” for a § 924(c)(1)(A) offense is an improper factor that the district court may
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not consider when sentencing a defendant on related crimes of violence. Id. at 933-34.
The holding in Hatcher comports with the decisions of other courts that have
considered the question. See, e.g., United States v. Chavez, 549 F.3d 119, 135 (2d Cir.
2008) (“[W]e conclude that a sentencing court is required to determine the appropriate
prison term for the count to which the § 924(c) punishment is to be consecutive; and
if the court reduces the prison term imposed for that underlying count on the ground
that the total sentence is, in the court’s view, too severe, the court conflates the two
punishments and thwarts the will of Congress . . . .”); United States v. Roberson, 474
F.3d 432, 436 (7th Cir. 2007) (“[T]o use the presence of a section 924(c)(1) add-on
to reduce the defendant’s sentence for the underlying crime would be inconsistent
with Congress’s determination to fix a minimum sentence for using a firearm in a
crime of violence.”). And the holding in Hatcher has not been cast into doubt by Gall,
Kimbrough, Spears or any other intervening Supreme Court decision. See United
States v. Porrello, No. 08-2658, 2009 WL 3488428, at *1 (8th Cir. Oct. 30, 2009)
(unpublished per curiam) (rejecting the argument by Hatcher’s co-defendant that the
district court erred in resentencing him according to this court’s mandate, explaining
that “[after] Gall, a district court still abuses its discretion when it gives significant
weight to an improper factor”); see also United States v. Calabrese, 572 F.3d 362,
369-70 (7th Cir. 2009) (affirming the Seventh Circuit’s continued adherence to
Roberson, without citing Gall, Kimbrough, or Spears), petition for cert. filed, 78
U.S.L.W. 3239 (U.S. Oct. 13, 2009) (No. 09-446). Thus, in sentencing Williams on
the bank robbery counts, the district court was not permitted to give any weight to the
severity of the statutory minimum sentences for the firearm counts, and the record
shows that the district court properly refused to do so.
All that remains is to determine whether the total sentence on the bank robbery
counts is substantively reasonable. As we have noted, the district court sentenced
Williams to 92 months’ imprisonment on each of the bank robbery counts, the bottom
of the guidelines range, and ordered those terms to run concurrently. We accord this
sentence, and all others within the applicable guidelines range, a “presumption of
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substantive reasonableness on appeal.” See Molina, 563 F.3d at 679 (quoting Phelps,
536 F.3d at 869). Williams has not identified a plausible basis for overcoming that
presumption in this case. Applying the “deferential abuse-of-discretion standard,”
United States v. Papakee, 573 F.3d 569, 577 (8th Cir. 2009) (quoting Gall, 552 U.S.
at 41), we are convinced that the sentence on the bank robbery counts is reasonable.
For the foregoing reasons, we affirm Williams’s overall sentence of 776
months’ imprisonment.3
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3
We note that Williams, who is represented by counsel on appeal, submitted a
pro se supplemental brief and a pro se supplemental reply brief. Although we granted
Williams permission to file a supplemental brief, “[i]t is typically not our practice to
consider pro se arguments where the defendant is represented by counsel,” United
States v. Moore, 481 F.3d 1113, 1114 n.2 (8th Cir. 2007). Nevertheless, we have
considered the arguments raised in Williams’s pro se briefs, and we conclude that they
are uniformly without merit. See United States v. Sanders, 341 F.3d 809, 822 n.2 (8th
Cir. 2003).
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