United States v. Maurice Williams ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2014 Decided December 2, 2014
No. 13-3034
UNITED STATES OF AMERICA,
APPELLEE
v.
MAURICE WILLIAMS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cr-00022-2)
Gregory S. Smith, appointed by the court, argued the cause
and filed the briefs for appellant.
Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman and John P.
Mannarino, Assistant U.S. Attorneys.
Before: GARLAND, Chief Judge, PILLARD, Circuit Judge,
and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GARLAND.
2
GARLAND, Chief Judge: A jury convicted Maurice Williams
on four counts related to his role in a conspiracy to distribute
narcotics. On appeal, Williams challenges the constitutionality
of searches that uncovered the drug evidence the government
used against him at trial, the propriety of part of the prosecutor’s
closing argument, and the district court’s refusal to accept an
argument Williams advanced at sentencing. For the reasons set
forth below, we affirm the judgment of the district court.
I
In September 2011, the Metropolitan Police Department
(MPD) began an investigation of suspected narcotics activity in
a house on Ninth Street, N.W. in Washington, D.C. On
September 16, an undercover officer saw three different
individuals approach a man -- later identified as appellant
Maurice Williams’ brother -- sitting on the house’s front porch.
Each individual engaged in brief conversation with the man,
went into the house with him for about a minute, and then left.
Officer Kenneth Thompkins and other MPD officers stopped
each of the three individuals: two possessed cocaine; the third
swallowed what the officers suspected were narcotics before
they were able to reach him.
On October 21, Officer Thompkins and his partner were
watching the Ninth Street house from their unmarked police car
when they saw appellant Williams leave the house. According
to Thompkins’ subsequent testimony, Williams then got into a
white Chevrolet parked nearby and drove off without putting on
his seatbelt. Suspecting that Williams was another drug
customer, Thompkins and his partner followed in their car,
intending to conduct a traffic stop. Repeatedly looking in his
rearview mirror, Williams stayed in the right lane and paused
behind a double-parked car on Georgia Avenue to let the
officers pass. The officers drove past in the left lane and,
3
according to Thompkins’ testimony, he saw that Williams still
had not put on his seatbelt. They then pulled over to the side
and waited until Williams began driving again. When he passed
them, the officers stopped the Chevrolet.
As the officers approached Williams’ car, Officer
Thompkins saw Williams watch them in his rearview mirror,
twice remove items from his jacket, and put the items in the
car’s center console. Thompkins, who smelled a “strong scent
of fresh marijuana” coming from the car, Suppression Hr’g Tr.
15, asked Williams for his driver’s license and registration.
Williams said he did not have his license with him and did not
have the registration because the car was rented. Thompkins
made an inquiry with MPD and learned that Williams’ license
had expired. After arresting Williams for driving without a
permit, Thompkins searched the center console, where he found
four grams of fresh marijuana and 125 grams of powder cocaine.
Armed with this evidence, the police obtained a search
warrant and searched the Ninth Street house the same day.
There they found crack cocaine, additional powder cocaine, drug
paraphernalia, and a recent letter addressed to Williams at that
address. Eventually, prosecutors filed drug charges against
Williams and his brother. As Williams was no longer in custody
on the driving-without-a-permit charge, prosecutors obtained
bench warrants for the arrests of both men.
On February 1, 2012, Thompkins arrested Williams’
brother. Thompkins then called Williams’ cell phone, told
Williams of his brother’s arrest, and -- as a ruse -- asked
Williams to come to the police station to pick up his brother’s
property. Williams was arrested when he arrived at the station.
In a search incident to that arrest, the police found, among other
things, a set of car keys on Williams’ person.
4
At some point that evening, Officer Thompkins asked
Williams how he got to the police station; Williams responded
that he had been dropped off. Later, Thompkins pressed a
button on the key fob attached to the car keys, which caused the
lights on a blue sedan parked outside the police station to flash.
When he approached the car, Thompkins again smelled a strong
odor of fresh marijuana through a partially open car window.
Thompkins called for a drug-sniffing dog, which “hit” on the
vehicle, indicating that narcotics were inside. Officers opened
the driver’s side door and saw a clear, plastic-wrapped package
of crack cocaine on the inside handle. They also found 21.9
grams of marijuana inside the center console and paperwork
with Williams’ name on it under the sun visor. In a videotaped
interview later that evening, Williams told an officer that he had
obtained the crack from “some guy that he had just met from
southeast” and that it was worth $3500. 2 Trial Tr. 217.
On January 26, 2012, a grand jury indicted Williams on four
counts: (1) conspiracy to distribute and possess with intent to
distribute marijuana, crack cocaine, and powder cocaine, in
violation of 21 U.S.C. § 846; (2) possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C); (3) possession with intent to distribute 28 grams or
more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(iii); and (4) simple possession of marijuana, in
violation of 21 U.S.C. § 844(a). All of the counts were based on
the evidence obtained during the October 21, 2011 searches of
the white Chevrolet and Ninth Street house. The drugs seized
from the blue sedan on February 1, 2012 were admitted only as
“other acts” evidence under Federal Rule of Evidence 404(b).
Williams moved to suppress the evidence the police seized
on October 21, 2011 and February 1, 2012. The district court
denied the motion, and a jury convicted Williams on all counts.
5
On April 11, 2013, the court sentenced Williams to 63 months’
imprisonment.
On appeal, Williams argues that the district court should
have suppressed the evidence the police seized on both days
because the seizures violated the Fourth Amendment, that the
prosecutor improperly vouched for the credibility of police
witnesses during closing argument at trial, and that the court
erred in refusing to consider sentencing disparities between
federal and District of Columbia sentencing guidelines as a
ground for a downward sentencing variance under 18 U.S.C.
§ 3553(a)(6). We address these arguments below.
II
Williams’ first contention is that the district court erred in
denying his motion to suppress the drug evidence arising out of
the October 21 car stop. As noted above, Officer Thompkins
testified he twice saw that Williams was driving without a
buckled seatbelt in violation of a District of Columbia
ordinance: when Williams first drove away from the Ninth
Street house, and when Thompkins’ car passed Williams’ on
Georgia Avenue. For his part, Williams testified he was
wearing his seatbelt from the get-go. He was wearing it, he said,
because a seatbelt had saved his life in a serious car accident the
year before. From then on, he explained, he always buckled up.
The district court concluded that Williams’ testimony was
credible. United States v. Williams, 878 F. Supp. 2d 190, 201
(D.D.C. 2012). From this, Williams deduces that the court
found he was in fact wearing a seatbelt. As a consequence, he
maintains that Thompkins could not have had probable cause to
stop him for not wearing one, and that Thompkins therefore
violated the Fourth Amendment by doing so. In addition,
Williams argues that, because the items of evidence seized in the
6
subsequent car search were the proceeds of the unlawful stop,
the court should have excluded them from the trial. He further
contends that the court should have suppressed the evidence
seized from the Ninth Street house as well, because the warrant
that justified that search and seizure was premised on the
evidence Thompkins obtained from the search of the car.
Williams does not dispute that an officer may
constitutionally stop an automobile if he has probable cause to
believe that the driver has committed a motor vehicle violation.
See Whren v. United States, 517 U.S. 806, 819 (1996). Nor does
he dispute that, if the stop of the car was lawful, the search of
the car was justified by the officers’ subsequent observation of
Williams twice taking things from his jacket and putting them
in the center console, combined with the strong smell of
marijuana coming from the car. See United States v. Jackson,
167 F. App’x 812, 813 (D.C. Cir. 2005) (holding that “the smell
of burnt marijuana emanating from the vehicle provided
probable cause to justify the agents’ search of the vehicle”); see
also United States v. Washington, 670 F.3d 1321, 1323 (D.C.
Cir. 2012). He maintains, however, that the district court’s
finding that Thompkins had probable cause to stop the white
Chevrolet cannot be squared with the court’s acceptance of
Williams’ testimony that he was wearing his seatbelt all along.
But the circle is readily squared in the way the district court
squared it. It is true that the court found that Williams credibly
testified that he buckled his seatbelt. The court also found,
however, that Thompkins credibly testified that he saw what he
thought was an unbuckled seatbelt. In short, it “found them both
to be credible.” Williams, 878 F. Supp. 2d at 202. Moreover,
the court further found that, “even if Maurice Williams were
wearing his seatbelt, . . . Thompkins was objectively reasonable
in his belief that the defendant committed a traffic violation by
driving without a seatbelt.” Id. Thompkins’ belief was
7
“objectively reasonable,” the court said, in light of his credible
testimony that “he had a clear view, could see through the tinted
window of defendant Maurice Williams’ vehicle because it was
a sunny day, and [had an] opportunity to confirm his belief that
the defendant was not wearing a seatbelt when the defendant
was stopped at the side of Georgia Avenue.” Id.1
In so holding, the district court followed this circuit’s
decision in United States v. Hill, 131 F.3d 1056 (D.C. Cir.
1997). In that case, the police had stopped the defendant’s car
for allegedly failing to display a Vehicle Identification Number
(“VIN number”) on his temporary tags. The defendant testified
that the tags had a VIN number on the night of the arrest. An
officer testified that they did not. As was the case here, although
the district court could not “say whether the tags had a VIN
number on them or not,” it credited the officer as truthfully
testifying “that he believed that the car did not have a VIN
number.” Id. at 1060.
In Hill, we reversed the district court’s denial of the
defendant’s suppression motion and remanded “for a
determination of whether it was objectively reasonable for the
officer that observed Hill’s car to conclude that a traffic
violation had occurred.” 131 F.3d at 1060. Probable cause
required, we said, that the officer’s conclusion be “objectively
reasonable,” id. at 1061 n.3; see Hill v. California, 401 U.S. 797,
802, 804 (1971), and the district court had “never explicitly
stated whether or not this belief was objectively reasonable,”
1
At oral argument, Williams’ counsel stated that he did not
challenge as clearly erroneous the district court’s factual findings
regarding what the officer had perceived. Oral Arg. Recording 6:27-
7:05; see United States v. Holmes, 505 F.3d 1288, 1292 (D.C. Cir.
2007) (noting that an appellate court reviews a district court’s “factual
findings” on a suppression motion “for clear error”).
8
Hill, 131 F.3d at 1060. In particular, we noted that “the record
before us contain[ed] no information regarding the conditions
under which the officer first observed Hill’s car -- e.g., how far
away the police cruiser was from Hill’s car at the time the
officer first observed the tags, the quality of the lighting, how
quickly Hill’s car was moving, etc.” Id.
Here, by contrast, the district court took care both to
expressly state that it found the officer’s belief objectively
reasonable, and to make the factual findings necessary to
establish that the officer was able to make his observations
under conditions that rendered his belief reasonable. See
Williams, 875 F. Supp. 2d at 202. As we said in Hill, “[i]t was
not necessary for the court to determine whether or not a VIN
actually appeared on Hill’s temporary tags at the time of the
traffic stop. Even if the court assumed that, contrary to the
testimony of the police officer, the tags contained a VIN at the
time of the stop, the stop was still permissible as long as the
officer’s belief that the VIN was missing was objectively
reasonable.” 131 F.3d at 1061 n.3. In support, we cited
controlling precedent holding that an officer’s reasonable
mistake of fact can provide probable cause for a stop.2 Because
2
See Hill v. California, 401 U.S. at 802 (“[W]hen the police have
probable cause to arrest one party, and when they reasonably mistake
a second party for the first party, then the arrest of the second party is
a valid arrest.” (internal quotation marks omitted)); United States v.
Glover, 725 F.2d 120, 122 (D.C. Cir. 1984) (same); see also Illinois
v. Rodriguez, 497 U.S. 177, 186 (1990) (holding that there is no
constitutional violation “when officers enter without a warrant because
they reasonably (though erroneously) believe that the person who has
consented to their entry is a resident of the premises”). Williams
maintains that the “reasonable mistake of fact” line of cases should be
limited to mistakes made by someone other than the arresting officer,
and should not excuse mistakes in the officer’s own observations.
Williams Br. 23-25; Reply Br. 6. All of the cases cited in this
9
Officer Thompkins’ belief that the seatbelt was unbuckled was
reasonable, whether or not it was erroneous, he had the probable
cause necessary to conduct the October 21 stop.
III
Williams’ second challenge concerns the district court’s
refusal to suppress the drug evidence that the police recovered
during the February 1 search of his blue sedan outside the police
station. According to Williams, when Officer Thompkins
activated Williams’ key fob, Thompkins conducted a search
within the meaning of the Fourth Amendment. That search,
Williams argues, was neither supported by probable cause nor
authorized by a warrant (nor subject to an exception to the
warrant requirement) and was therefore unconstitutional.
Williams further contends that the subsequent search and seizure
of drugs from his car constituted a separate Fourth Amendment
violation, as it was also undertaken without a warrant.
1. There is no dispute that the officers’ search of Williams’
person and their seizure of the keys and key fob were lawful as
part of a search incident to his arrest. See United States v.
Robinson, 414 U.S. 218, 235 (1973); United States v. Riley, 351
F.3d 1265, 1269 (D.C. Cir. 2003); cf. Riley v. California, 134 S.
Ct. 2473, 2484 (2014) (reaffirming Robinson’s categorical rule
with respect to the search and seizure of a physical object).
Whatever the merits of Williams’ claim that the warrantless
activation of his key fob constituted a separate, unlawful search,
we do not reach them here. At the suppression hearing,
Williams did not claim that the activation of the key fob
constituted a search at all, let alone an unconstitutional search.
See Mem. in Supp. of Def.’s Mot. to Suppress at 2-3.
Accordingly, pursuant to Federal Rule of Criminal Procedure
footnote, however, involved mistakes made by officers themselves.
10
12, Williams’ claim is waived. See FED. R. CRIM. P.
12(b)(3)(C), (e); United States v. Peyton, 745 F.3d 546, 551
(D.C. Cir. 2014); United States v. Mitchell, 951 F.2d 1291,
1296-97 (D.C. Cir. 1991).3
Even if we were to treat Williams’ failure to raise this claim
as a forfeiture rather than waiver, we would still not be able to
adjudicate its merits de novo. We may review an argument that
a defendant forfeits by failing to raise it in district court only for
plain error. United States v. Simpson, 430 F.3d 1177, 1183
(D.C. Cir. 2005). Under that standard: “‘[T]here must be (1)
error, (2) that is plain, and (3) that affect[s] substantial rights.
If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4)
the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” Id. (quoting Johnson v.
United States, 520 U.S. 461, 467 (1997) (internal citations and
quotation marks omitted)); see FED. R. CRIM. P. 52(b). In most
cases, to affect the defendant’s substantial rights, “‘the error
must have been prejudicial: It must have affected the outcome
of the district court proceedings.’” Simpson, 430 F.3d at 1184
(quoting United States v. Olano, 507 U.S. 725, 734 (1993)).
If there were an error here, it would still falter at the second
requirement. As we have explained, “[a]bsent controlling
precedent on the issue or some other ‘absolutely clear’ legal
norm, the district court commit[s] no plain error.” United States
v. Nwoye, 663 F.3d 460, 466 (D.C. Cir. 2011) (quoting In re
Sealed Case, 573 F.3d 844, 851 (D.C. Cir. 2009)). There is no
controlling precedent or clear legal norm regarding the
activation of key fobs. Neither this circuit nor any other has
3
Although a court may grant relief from waiver “[f]or good
cause,” FED. R. CRIM. P. 12(e), Williams makes no argument for such
relief.
11
held that an officer’s warrantless activation of a key fob to
locate the vehicle to which it corresponds constitutes a search,
let alone an unconstitutional one. Cf. United States v. Cowan,
674 F.3d 947, 955-57 (8th Cir. 2012) (holding that the use of a
key fob to locate a car is not a search or seizure because, inter
alia, “the fob merely would identify the vehicle” and the
defendant “did not have a reasonable expectation of privacy in
the identity of his car”). Accordingly, the district court did not
commit plain error -- if it committed error at all -- by failing to
rule that the manipulation of the key fob constituted an unlawful
search.
2. Williams’ challenge to the subsequent, warrantless search
of his car fares no better. Williams does not dispute that, “once
[the officers] smelled the marijuana and got the service dog
there they had probable cause.” Suppression Hr’g Tr. 117
(acknowledgment by defense counsel); see Florida v. Harris,
133 S. Ct. 1050 (2013) (holding that a drug-sniffing dog’s
detection of drugs constitutes probable cause absent a showing
of the dog’s unreliability); see also Jackson, 167 F. App’x at
813. And under the “automobile exception” to the warrant
requirement, “‘[i]f a car is readily mobile and probable cause
exists to believe it contains contraband, the Fourth
Amendment . . . permits the police to search the vehicle without
more.’” United States v. Maynard, 615 F.3d 544, 567 (D.C. Cir.
2010) (quoting Pennsylvania v. Labron, 518 U.S. 938, 940
(1996)), aff’d on other grounds sub nom. United States v. Jones,
132 S. Ct. 945 (2012).
Williams does dispute that his car was “readily mobile,”
noting that it was parked and inaccessible to him. But all that is
required for an automobile to be “readily mobile” within the
meaning of the automobile exception is that it is “used on the
highways, or . . . is readily capable of such use.” California v.
Carney, 471 U.S. 386, 392-93 (1985); see Michigan v. Thomas,
12
458 U.S. 259, 261 (1982) (holding that “the justification to
conduct such a warrantless search does not . . . depend upon a
reviewing court’s assessment of the likelihood in each particular
case that the car would have been driven away”). Williams’ car,
which he had driven to the police station and parked outside,
was clearly subject to the exception.4 The police could therefore
search it without a warrant if they had probable cause to do so --
which they did.
IV
Williams next argues that the prosecutor’s closing argument
“improperly vouched for the credibility of [the government’s]
law enforcement witnesses.” Williams Br. 46. In his closing
argument to the jury, Williams’ attorney challenged Officer
Thompkins’ account of his stop of the white Chevrolet,
maintaining that Thompkins “ma[d]e up the statement that [he]
saw [Williams] get in the car without putting on a seat belt,” 4
Trial Tr. 66, and declaring that Thompkins’ testimony “defie[d]
common sense,” id. at 65, and “lack[ed] any credibility,” id. at
66. Williams also attacked the credibility of other police
witnesses who had testified during the trial. Id. at 69-70.
During her rebuttal, the prosecutor attempted to rehabilitate the
officers’ credibility by noting that: (1) “there is absolutely no
evidence here that these officers all somehow came together to
railroad Maurice Williams,” id. at 76; and (2) there is “no
indication at all that any of the officers involved in this case
4
See United States v. Johns, 469 U.S. 478, 484 (1985) (holding
that a “vehicle lawfully in police custody may be searched on the basis
of probable cause to believe that it contains contraband”); Michigan,
458 U.S. at 260 (affirming the warrantless search of an automobile, in
which officer had probable cause to believe there was contraband,
notwithstanding that “both the car and its occupants were already in
police custody”).
13
have ever met these defendants, that there’s any personal
vendetta against them,” id. at 79. The prosecutor then
rhetorically asked, (3) “why would these officers jeopardize
lengthy careers and lie about individuals they don’t know?” Id.
at 80.
Williams did not object to any of the prosecutor’s
statements. As he acknowledges, we therefore may review them
only for plain error. Williams Br. 47 n.20; see United States v.
Young, 470 U.S. 1, 14 (1985) (holding that “the dispositive
issue . . . is not whether the prosecutor’s [unobjected-to] remarks
amounted to error, but whether they rose to the level of ‘plain
error’” under Federal Rule of Criminal Procedure 52(b)); see
also United States v. Wilson, 605 F.3d 985, 1022 (D.C. Cir.
2010); United States v. Boyd, 54 F.3d 868, 872 (D.C. Cir. 1995).
As we noted above, this means that we may reverse the
conviction only if: there was error; the error was plain; the error
was prejudicial; and the error seriously affected the fairness,
integrity, and public reputation of judicial proceedings.
Simpson, 430 F.3d at 1183.
This circuit has repeatedly held that it is error for a
prosecutor to “vouch” for the credibility of a witness, whether
based on evidence outside the trial record or on the prosecutor’s
word (which is itself presumably based on evidence outside the
record). See, e.g., United States v. Moore, 651 F.3d 30, 62 (D.C.
Cir. 2011); Wilson, 605 F.3d at 1021-22; United States v. Brown,
508 F.3d 1066, 1074-75 (D.C. Cir. 2007); Boyd, 54 F.3d at 871-
72. Neither of the first two comments identified above fit that
description. Neither relied on the prosecutor’s word or on
evidence outside the record. To the contrary, each called the
jury’s attention to the trial record, noting the absence of the kind
of evidence that might support defense counsel’s claim that the
officers were lying about what they saw.
14
The prosecutor’s third comment -- asking why the officers
“would . . . jeopardize lengthy careers and lie about individuals
they don’t know” -- is a different matter. Indeed, it is virtually
identical to the prosecutor’s comment that we held was error in
United States v. Boyd. See 54 F.3d at 870 (“Does it make sense
that they are going to get on the stand and perjure themselves to
get Jannazzo Boyd? Does it make sense that they are going to
put their careers . . . on the line for Jannazzo Boyd, someone that
they don’t even know . . . ?”). In Boyd, we found the comment
to be “clearly improper” because it constituted “‘vouching’ for
the police witnesses’ credibility,” based “on evidence not in the
record” regarding the effect the testimony might have on the
witnesses’ careers. Id. at 871. We have repeated Boyd’s
holding at least twice. See United States v. Reed, 522 F.3d 354,
360 & n.6 (D.C. Cir. 2008); United States v. Hall, 370 F.3d
1204, 1209 (D.C. Cir. 2004). Accordingly, the prosecutor’s
error was not just error; it was also plain.
It is no answer to argue, as the government does, that the
prosecutor’s statement was justified by the defense counsel’s
attacks on the police witnesses’ credibility during his own
closing argument. See Young, 470 U.S. at 14 (holding that a
prosecutor’s statement in rebuttal argument constituted error,
notwithstanding that it was a response to an improper argument
by defense counsel). Indeed, the D.C. Circuit case that the
government cites for this proposition, United States v. Hall, does
not support it. See 370 F.3d at 1209 n.5 (“We do not mean to
say that the . . . prosecutor’s reply . . . was proper.”). Moreover,
the prosecutor’s justification in this case was even weaker than
it was in Hall. In Hall, the prosecutor was responding directly
to defense counsel’s suggestion “that the officers’ desire not to
jeopardize their careers gave them a motive to commit perjury.”
370 F.3d at 1209. Here, defense counsel had said nothing about
the officers’ career interests, arguing only that the testimony
15
must have been “made up” because it defied “common sense.”
4 Trial Tr. 65-66.
Nonetheless, as in Boyd (and Hall), although the
prosecutor’s statement was error, it did not constitute prejudicial
error. See Boyd, 54 F.3d at 872; see also Hall, 370 F.3d at 1209.
Rather, it was an isolated remark of little import, the impact of
which the district court mitigated by giving appropriate jury
instructions. The court instructed the jurors that the “statements
and arguments” and “questions of the lawyers are not evidence,”
4 Trial Tr. 86, 89; that they “alone determine whether to believe
any witnesses,” id. at 94; and that a “police officer’s testimony
should be evaluated . . . just as any other evidence in the case”
and should not be given “either greater or lesser weight” merely
because the witness is a police officer, id. at 96. Under these
circumstances, we conclude that the appellant did not suffer
prejudice from the prosecutor’s improper statement and that
therefore there was no plain error. See Boyd, 54 F.3d at 872;
Moore, 651 F.3d at 62-63.
V
Finally, we address Williams’ challenge to his sentence. In
United States v. Booker, the Supreme Court held that the United
States Sentencing Guidelines are no longer binding on district
courts, but rather are advisory only. 543 U.S. 220, 245 (2005);
see Peugh v. United States, 133 S. Ct. 2072, 2079-80 (2013).
After Booker, “a district court should begin all sentencing
proceedings by correctly calculating the applicable Guidelines
range.” Gall v. United States, 552 U.S. 38, 49 (2007). But the
court must then consider the arguments of the parties and the
seven sentencing factors set forth in 18 U.S.C. § 3553(a) to
determine the appropriate sentence, including whether a
variance from the advisory Guidelines range is warranted. Id.
at 49-50; see Peugh, 133 S. Ct. at 2083; Kimbrough v. United
16
States, 552 U.S. 85, 109-10 (2007); see also Pepper v. United
States, 131 S. Ct. 1229, 1245 n.12 (2011) (explaining that “a
‘variance’ refers to a non-Guidelines sentence outside the
Guidelines framework”). Following this regime, the district
court first calculated Williams’ Guidelines range as 63-78
months’ imprisonment. Thereafter, the court considered the
§ 3553(a) factors and rejected Williams’ request for a three-
month downward variance from the Guidelines range.
On appeal, Williams objects only to the district court’s
refusal to grant a downward variance based upon an argument
he made regarding § 3553(a)(6), which directs the court to
consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct,” 18 U.S.C. § 3553(a)(6). The
sentence disparities upon which Williams relied were those
between defendants tried in federal district court and sentenced
under the U.S. Sentencing Guidelines, and those tried in the
Superior Court of the District of Columbia and sentenced under
the District’s own guidelines. Williams maintained that his
sentence under the latter would have been lower, and that a
variance was therefore justified.
The district court rejected Williams’ requested variance,
concluding that the only provision upon which he had based that
request, § 3553(a)(6), addresses unwarranted disparities only at
the federal level, rather than disparities between federal and state
sentences. The only question that Williams raises on appeal is
whether the district court’s construction of § 3553(a)(6)
constitutes legal error. See Reply Br. 24. Because the district
court construed that statutory provision the same way this circuit
17
did in United States v. Washington, the answer must be no. See
670 F.3d at 1326-27.5
Although Washington held that sentence disparities between
the U.S. and D.C. guidelines are insufficient to support a
variance under § 3553(a)(6), id. at 1326-27, it further held that
“post-Booker nothing necessarily precludes consideration of the
D.C. Guidelines in the district court’s exercise of discretion in
determining a particular sentence,” id. at 1327. Contrary to a
suggestion in Williams’ post-argument letter, in this case the
district court made clear it understood that, post-Booker, the
U.S. Sentencing Guidelines are advisory only. See Sentencing
Hr’g Tr. 13-24, 32, 46-47. But Williams offered no argument
that the D.C. Guidelines were relevant to his request for a
variance in any way other than under § 3553(a)(6). Def.’s
Sentencing Mem. at 22-23; see Williams Br. 50-52. And
Washington precludes his contention that the court misconstrued
that provision.
5
See also, e.g., United States v. Begin, 696 F.3d 405, 412 (3d Cir.
2012) (“‘Section 3553(a)(6) addresses unwarranted sentence
disparities among federal defendants who are similarly situated instead
of disparate federal and state sentences.’” (quoting United States v.
Docampo, 573 F.3d 1091, 1102 (11th Cir. 2009))); United States v.
Jeremiah, 446 F.3d 805, 807-08 (8th Cir. 2006) (“Unwarranted
sentencing disparities among federal defendants remains the only
consideration under § 3553(a)(6) -- both before and after Booker.”);
United States v. Clark, 434 F.3d 684, 687 (4th Cir. 2006) (“The sole
concern of section 3553(a)(6) is with sentencing disparities among
federal defendants.” (emphasis omitted)).
18
VI
For the foregoing reasons, the judgment of the district
court is
Affirmed.