United States v. James E. Williams ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1411
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
James E. Williams, *
*
Appellant. *
___________
Submitted: November 18, 2009
Filed: January 8, 2010
___________
Before WOLLMAN, RILEY, and SHEPHERD, Circuit Judges.
___________
RILEY, Circuit Judge.
James E. Williams (Williams) appeals the sentence he received after he pled
guilty to making a threatening telephone communication, in violation of 18 U.S.C.
§ 875(c). Williams claims the district court1 erred in imposing a two-level sentencing
enhancement under United States Sentencing Guidelines (U.S.S.G. or Guidelines)
§ 3B1.4 for use of a minor in the commission of the offense. We affirm.
1
The Honorable Karen E. Schreier, Chief Judge, United States District Court for
the District of South Dakota.
I. BACKGROUND
In June 2008, Williams was an inmate at the Federal Prison Camp in Yankton,
South Dakota, serving a 70-month sentence for possession with intent to distribute
cocaine base.2 Williams’s wife resided in Missouri. Williams became frustrated when
his wife cut off contact with him and he could not reach her to make plans for an
upcoming furlough. On June 12, 2008, Williams left two threatening messages on his
wife’s voicemail. Prison employees monitored Williams’s telephone calls and
recorded the messages on the prison phone system.
In order to reach his wife’s voicemail, Williams placed a call to his mother and
requested that she make a three-way call to the cellular phone of Williams’s wife.
Williams’s mother summoned Williams’s 16 year-old niece and told the niece to talk
with Williams. Williams gave his niece a phone number and instructed her to call the
number. When the first number failed to reach his wife, Williams gave his niece a
second number to dial. Williams directed his niece to let the answering service pick
up the call, and when prompted, Williams instructed his niece to press “1” so he could
leave a message. In the message, Williams threatened his wife that if she planned to
“run off and leave” Williams, no one in her family would “be able to protect” her from
Williams. Williams then instructed his niece to hang up the connection with his wife
and said, “I’m going to kill that bitch.”
Williams asked to speak to his mother. Williams talked to his mother, and
then told his mother to put his niece back on the phone. Williams directed his
niece to dial his wife’s number again, and Williams left a second voicemail on his
wife’s phone, declaring:
2
Williams initially received a sentence of 84 months imprisonment. Williams’s
sentence was reduced to 70 months imprisonment as a result of the crack cocaine
amendments to the Guidelines.
-2-
Yeah, I’m going to kill your m_____-f______ ass. . . . I’m going to
kill you and your m_____-f______ family just as soon as I get up out
of this m_____-f_____. I’m going to kill you, your family, your
daughter, your son, your uncle, your daddy, your mom. I’m killing all
of you m_____-f_____s.
The niece disconnected at Williams’s direction.
A federal grand jury charged Williams with two counts of making a
threatening telephone communication, in violation of 18 U.S.C. § 875(c). Section
875(c) states: “Whoever transmits in interstate or foreign commerce any
communication containing any threat to kidnap any person or any threat to injure
the person of another, shall be fined under this title or imprisoned not more than
five years, or both.” Williams pled guilty to Count 1 of the indictment, and Count
2 was dismissed on the government’s motion.
A presentence investigation report (PSR) prepared for Williams
recommended a two-level sentencing enhancement pursuant to U.S.S.G. § 3B1.4.
Section 3B1.4 instructs, “If the defendant used or attempted to use a person less
than eighteen years of age to commit the offense or assist in avoiding detection of,
or apprehension for, the offense, increase by 2 levels.” Williams objected to this
portion of the PSR and denied he used a minor to commit the offense.
On February 5, 2009, the district court sentenced Williams. The district
court considered Williams’s objection to the sentencing enhancement for use of a
minor in the commission of the offense. Williams’s counsel argued Williams “did
not intend to use the minor, she just happened to be there.” The district court
overruled Williams’s objection, stating:
[I]t is pretty clear to me that the 16 year old niece was used by the
defendant to assist him in committing the offense. She is the one that
-3-
dialed the number at his direction, he specifically told her what
number to dial, told her to hang up the call, told her to dial the number
again, told her to hang up the phone call, directed her to dial a number
again, told her to click it off and call again. When there was a
message on the phone he specifically told the niece to press 1, told her
to hang up the phone. At one point, he specifically asked his mother
to put his niece on the telephone, and then gave her all of these
directions on what she should do. I think that squarely falls under
Section 3B1.4, because he used a person under the age of 18 to
commit the crime.
With the addition of the two-level enhancement for use of a minor,
Williams’s total offense level was 12, and his criminal history category was IV,
resulting in an advisory Guidelines range of 21 to 27 months imprisonment. The
district court sentenced Williams to 21 months imprisonment and 3 years
supervised release.
II. DISCUSSION
“We review the district court’s construction and application of the
sentencing guidelines de novo, and we review its factual findings regarding
enhancements for clear error.” United States v. Cordy, 560 F.3d 808, 817 (8th Cir.
2009).
Williams contends the district court erred in imposing the U.S.S.G. § 3B1.4
enhancement for two reasons. First, Williams argues it was his mother, not
Williams, who requested Williams’s niece to assist Williams in placing the phone
calls. Second, because Count 2 of the indictment was dismissed, Williams insists
the district court erroneously relied upon conduct which occurred after the
completion of the first call to find Williams used his minor niece to commit the
offense.
-4-
In making his first argument that § 3B1.4 does not apply, Williams focuses
solely on the fact that Williams did not himself recruit his niece to participate in
making the phone call. Williams fails to recognize that the term “use” is not
limited to active recruitment of a minor to participate in an offense. Application
Note 1 to U.S.S.G. § 3B1.4 states: “‘Used or attempted to use’ includes directing,
commanding, encouraging, intimidating, counseling, training, procuring,
recruiting, or soliciting.” (emphasis added). Although Williams’s mother initially
requested Williams’s niece get on the phone, Williams then assumed control, and
gave his niece explicit directions and commands, including which numbers to dial,
how to place the calls, and when to hang up. Williams affirmatively incorporated
his minor niece into the commission of his crime. We conclude Williams’s
conduct does squarely fall under § 3B1.4’s definition of “use,” and the district
court did not err in imposing the two-level enhancement.
Williams next objects to the district court’s reliance on conduct which
occurred after the termination of the first call. While Williams objected to the
imposition of a § 3B1.4 enhancement, he did not raise any objection to the district
court’s reference to the second phone call. “Procedural sentencing errors are
forfeited, and therefore may be reviewed only for plain error, if the defendant fails
to object in the district court.” United States v. Burnette, 518 F.3d 942, 946 (8th
Cir. 2008) (citation omitted). The reason we review for plain error under these
circumstances is because, without an objection at sentencing, “the district court had
no opportunity to clarify its comments or to correct any potential error in the first
instance.” United States v. M.R.M., 513 F.3d 866, 870 (8th Cir.), cert. denied, 129
S. Ct. 171 (2008). “Under plain error review, the defendant must show: (1) an
error; (2) that is plain; and (3) that affects substantial rights.” United States v.
Moore, 565 F.3d 435, 437 (8th Cir. 2009) (quoting United States v. Phelps, 536
F.3d 862, 865 (8th Cir. 2008)). We conclude the district court did not commit
plain error because, as we stated above, Williams’s conduct during the first phone
call was sufficient to warrant the § 3B1.4 enhancement.
-5-
III. CONCLUSION
We affirm the district court’s judgment.
______________________________
-6-