United States v. Jeffrey Williamson , 903 F.3d 124 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2017 Decided August 10, 2018
No. 15-3018
UNITED STATES OF AMERICA,
APPELLEE
v.
JEFFREY HENRY WILLIAMSON, ALSO KNOWN AS JEFF
WILLIAMSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cr-00151-1)
Richard K. Gilbert, appointed by the court, argued the
cause and filed briefs for appellant.
Jeffrey H. Williamson, pro se, filed briefs for appellant.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Elizabeth
Trosman and Frederick W. Yette, Assistant U.S. Attorneys.
Before: GARLAND, Chief Judge, and ROGERS and
SRINIVASAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
2
SRINIVASAN, Circuit Judge: Jeff Henry Williamson was
convicted of threatening to murder a federal law enforcement
officer. Williamson raises several challenges to his conviction
and sentence in this appeal. We reject most of his challenges,
except that we remand the case to the district court to give
Williamson access to jury-commission records as required by
28 U.S.C. § 1867.
I.
This case arises out of a 911 phone call Williamson made
on June 19, 2014. In the call, Williamson threatened to murder
a special agent of the Federal Bureau of Investigation named
Brian Schmitt. Soon after, Williamson was charged with
making a threat against a federal law enforcement officer “with
intent to retaliate against such . . . officer on account of the
performance of official duties.” 18 U.S.C. § 115(a)(1)(B).
Williamson chose to represent himself, and the case
proceeded to trial. At trial, the government sought to show that
the threatening 911 phone call was the culmination of
Williamson’s longstanding obsession with Agent Schmitt,
which dated back to a 2005 interaction between Schmitt and
Williamson in Denver. In that interaction, Schmitt was
involved in issuing Williamson a misdemeanor ticket for
making harassing phone calls to the local FBI field office.
Over the next three months, Schmitt was involved in issuing
Williamson two additional tickets for making similar calls.
At trial, the government introduced evidence that, before
the June 19, 2014, call at issue in this case, Williamson made a
number of phone calls in which he had mentioned Schmitt. For
example, on June 2, 2014, Williamson left fourteen messages
for an Assistant U.S. Attorney in the District of Columbia. In
his messages, Williamson complained about being harassed by
3
FBI agents while he was in Washington, D.C., mentioning
Schmitt by name several times. Williamson also referenced the
tickets Schmitt had been involved in issuing him in Denver in
2005 and 2006. The series of messages became increasingly
angry and threatening. In the last message, Williamson said
that he would “smash the f— out of” the FBI agents he believed
were harassing him, and “plead not guilty by reason of
entrapment.” Suppl. App. 414.
One week later, on June 9, Williamson called the office of
FBI Agent Steven Olson, the agent who supervised Schmitt in
Denver. Williamson told Olson’s assistant to “tell Brian
Schmitt and Steve Olson that I am going to hunt them down
and kill them.” Suppl. App. 86. Williamson then said
something to the effect that he was going to “pop them in the
heads and blow them away.” Id.
Ten days later, on June 19, Williamson issued the threat
giving rise to his charge and conviction in this case. In a call
to a 911 line, Williamson left a message in which he repeatedly
stated that he would shoot FBI Agent Brian Schmitt “in his
f— in head.” United States v. Williamson, 83 F. Supp. 3d 394,
399 (D.D.C. 2015).
At trial, Williamson admitted that he “did make the
threat.” App. 318. But he argued that he lacked the requisite
intent to commit the crime because he had not issued the threat
in retaliation against Schmitt for “the performance of official
duties.” 18 U.S.C. § 115(a)(1)(B). Rather, Williamson alleged,
Schmitt and other FBI agents had been harassing him over a
period of years for his political activism and that the
harassment continued until Williamson made the 911 call.
Williamson argued that he made the threat merely to stop the
harassment. As a result, Williamson contended, he had not
violated 18 U.S.C. § 115(a)(1)(B).
4
Williamson also sought to argue that he had been
entrapped into making the threat. He suggested that Schmitt’s
purpose for harassing him was to induce him to commit a
crime. The district court denied discovery on entrapment and
declined to issue an entrapment instruction, concluding that
Williamson “failed to ‘proffer sufficient evidence from which
a reasonable jury could find entrapment.’” App. 159 (quoting
Mathews v. United States, 485 U.S. 58, 62 (1988)).
The jury convicted Williamson of making a threat in
violation of 18 U.S.C. § 115(a)(1)(B). The district court
sentenced him to 96 months of imprisonment. See Williamson,
83 F. Supp. 3d at 395.
On appeal, Williamson’s appointed counsel has submitted
briefs challenging Williamson’s conviction and sentence. This
court granted Williamson leave to file supplemental pro se
briefs, in which he has advanced the same arguments pressed
by his appointed counsel and also offered several additional
ones.
II.
There are four arguments Williamson advances both
through his appointed counsel and in his pro se briefs. First, he
contends that the indictment was legally insufficient because it
did not fairly inform him of the charged offense. Second, he
argues that the district court erred in declining to instruct the
jury on his proposed entrapment defense. Third, he submits
that the district court improperly denied him access to
jury-commission records. Fourth, he contends that the district
court abused its discretion in several ways in sentencing him to
96 months of imprisonment.
5
We agree that Williamson was entitled to inspect
jury-commission records under 28 U.S.C. § 1867, and
therefore remand the case on that ground. We reject the three
remaining arguments.
A.
To be sufficient under the Constitution, an indictment
“need only inform the defendant of the precise offense of which
he is accused so that he may prepare his defense and plead
double jeopardy in any further prosecution for the same
offense.” United States v. Verrusio, 762 F.3d 1, 13 (D.C. Cir.
2014); see United States v. Resendiz-Ponce, 549 U.S. 102, 108
(2007). Federal Rule of Criminal Procedure 7(c) effectuates
that understanding, requiring an indictment to contain “a plain,
concise, and definite written statement of the essential facts
constituting the offense charged.” To meet those requirements,
“[i]t is generally sufficient that an indictment set forth the
offense in the words of the statute itself, as long as those words
of themselves fully, directly, and expressly, without any
uncertainty or ambiguity, set forth all the elements necessary
to constitute the offence intended to be punished.” Hamling v.
United States, 418 U.S. 87, 117 (1974) (citation and internal
quotation marks omitted).
The Supreme Court’s decision in Resendiz-Ponce is
illustrative. There, the government indicted the defendant for
attempted reentry into the United States in violation of 8 U.S.C.
§ 1326(a). The statute bars certain “alien[s]” from
“attempt[ing] to enter . . . the United States.” 8 U.S.C.
§ 1326(a)(2). The indictment echoed the statutory language,
while adding a time and place of the charged offense, stating:
“On or about June 1, 2003,” the defendant “attempted to enter
the United States of America at or near San Luis in the District
of Arizona.” 549 U.S. at 105. The Court explained that, by
6
using the statutory language and specifying the time and place
of the offense, the indictment gave the defendant fair notice of
the charge against which he would need to defend himself, and
also enabled him to protect himself against future prosecution
for the same offense. Id. at 108. In short, the case exemplified
the understanding that “an indictment parroting the language of
a federal criminal statute is often sufficient.” Id. at 109.
The indictment in this case is much like the one upheld in
Resendiz-Ponce. Here, the statute makes it a crime to
“threaten[] to assault . . . or murder” a “Federal law
enforcement officer . . . with intent to retaliate against” the
“officer on account of the performance of official duties.” 18
U.S.C. § 115(a)(1)(B). As in Resendiz-Ponce, the indictment
echoes the operative statutory text while also specifying the
time and place of the offense (as well as the identity of the
threatened officer): “On or about June 19, 2014, within the
District of Columbia, defendant . . . did threaten to assault and
murder a Federal law enforcement officer, that is, Brian
Schmitt, a Special Agent with the Federal Bureau of
Investigation, with intent to retaliate against such . . . officer on
account of the performance of his official duties.” App. 47.
And just as in Resendiz-Ponce, by parroting the statutory
language and specifying the time and place of the offense and
the identity of the threatened officer, the indictment adequately
informed Williamson about the charge against him so that he
could prepare his defense and protect his double-jeopardy
rights.
Williamson contends that the indictment was insufficient
because it did not identify particular “official duties”
performed by Schmitt that motivated Williamson’s threat. The
Court in Resendiz-Ponce rejected a similar argument. The
defendant there, observing that the elements of the
attempted-reentry offense include the commission of an overt
7
act, contended that the indictment was deficient because it
failed to allege any specific overt act he had performed. 549
U.S. at 109. The Court, though, thought it was enough for the
indictment to allege the performance of an overt act in general
(which the indictment had implicitly done by alleging an
attempt to enter the United States), and that there was no need
to specify a particular overt act. Id. at 107, 110. Here, it was
likewise enough for the indictment to allege—in concert with
the statutory language—that a threat was made “on account of
the performance of official duties” in general, 18 U.S.C.
§ 115(a)(1)(B), without any need to specify a particular official
duty.
It is true that, while parroting the statutory language is
“often sufficient,” that is not invariably so. Resendiz-Ponce,
549 U.S. at 109. Williamson relies, for instance, on Russell v.
United States, in which the government had indicted the
defendants for refusing to answer questions before a
congressional subcommittee. 369 U.S. 749, 752 (1962). That
statute barred individuals from refusing “to answer any
question pertinent to the subject under inquiry” before a
congressional committee. 2 U.S.C. § 192. The indictment
contained no information identifying the particular matter
“under inquiry” before the subcommittee, instead using the
generic terms of the statute. Russell, 369 U.S. at 752. The
Court held that the indictment was insufficient. Id. at 764.
Because “the very core of criminality” under the statute is
“pertinency to the question under inquiry,” the matter under
inquiry is “central to every prosecution under the statute.” Id.
The Court thus held that the defendants could not be fairly
informed of the charges against them unless the indictment
identified the subject of the subcommittee’s inquiry. Id.
That is untrue of any particular “official duties” performed
by a threatened federal officer for purposes of a prosecution
8
under 18 U.S.C. § 115(a)(1)(B). Specifying a particular
official duty (or duties) that may occasion a threat against an
officer is not at all “central to every prosecution under the
statute.” Russell, 369 U.S. at 764. Nor is it “the very core of
criminality” under the statute. Id. The statute speaks in terms
of a threat made “on account of the performance of official
duties,” not to draw attention to a particular official duty, but
instead to assure that the threat generally relates to the officer’s
performance of official duties rather than to a personal dispute
having nothing to do with the officer’s job functions. For
instance, the statute would not reach a threat arising from a
personal dispute with a neighbor who happens be a law
enforcement officer, where the subject of the disagreement is
entirely unconnected to the officer’s performance of his job.
Here, the indictment, by restating the statutory language,
fairly informed Williamson that he was being charged with
threatening Schmitt in retaliation for Schmitt’s “performance
of official duties,” 18 U.S.C. § 115(a)(1), as opposed to
threatening Schmitt for reasons unrelated to his law
enforcement responsibilities. There was no need for the
indictment to go beyond the statute’s terms on that score. And
more generally, the indictment fairly informed Williamson of
the charge against him so as to satisfy the Constitution and Rule
7(c).
B.
Williamson argues next that the district court erred in
declining to instruct the jury on his proposed entrapment
defense. Reviewing the matter de novo and assuming that
Williamson’s version of the facts is true, see United States v.
Glover, 153 F.3d 749, 752 (D.C. Cir. 1998), we conclude that
the district court properly rejected Williamson’s entrapment
defense as a matter of law.
9
The entrapment defense protects defendants who would
have refrained from committing an offense absent government
inducement. The central question in an entrapment case is
“whether government agents ‘implanted in the mind of an
innocent person the disposition to commit the alleged offense
and induced its commission in order that they may prosecute.’”
United States v. McKinley, 70 F.3d 1307, 1311-12 (D.C. Cir.
1995) (brackets removed) (quoting Sorrells v. United States,
287 U.S. 435, 442 (1932)). We consider entrapment under a
two-step framework.
First, the defendant must introduce evidence that the
government induced her to commit the crime. Id. at 1312.
“The government’s behavior amounts to inducement when it
was ‘such that a law-abiding citizen’s will to obey the law
could have been overborne.’” Glover, 153 F.3d at 754 (quoting
United States v. Kelly, 748 F.2d 691, 698 (D.C. Cir. 1984)). A
range of government conduct could qualify as inducement
under that standard, including “persuasion, fraudulent
representations, threats, coercive tactics, harassment, promises
of reward, or pleas based on need, sympathy or friendship.”
United States v. Sanchez, 88 F.3d 1243, 1249 (D.C. Cir. 1996)
(quoting United States v. Burkley, 591 F.2d 903, 913 (D.C. Cir.
1978)). But inducement generally “requires a showing that the
government agent actually solicited or suggested the criminal
conduct.” United States v. Solofa, 745 F.3d 1226, 1229 (D.C.
Cir. 2014).
Second, if the defendant introduces sufficient evidence of
government inducement, the burden shifts to the government
to prove beyond a reasonable doubt that the defendant was
predisposed to commit the crime. Glover, 153 F.3d at 754. If
the government fails to meet its burden of proving
predisposition, the defendant will be entitled to acquittal on
entrapment grounds. See id.
10
A defendant is only “entitled to an entrapment instruction
when there is sufficient evidence from which a reasonable jury
could find entrapment.” Mathews, 485 U.S. at 62. Here, the
district court determined that Williamson failed at the first step
because he did not introduce evidence of government
inducement. See United States v. Williamson, 2014 WL
12695537, at *3-4 (D.D.C. Oct. 20, 2014).
Williamson sought to argue that Agent Schmitt and other
FBI agents had engaged in a pattern of harassment over several
years with the specific aim of causing Williamson to commit a
threatening or violent act for which he could be imprisoned.
Williamson alleged he had complained about the harassment to
various authorities, to no avail. According to Williamson’s
account, the agents’ harassing conduct, coupled with the
government’s failure to respond to his complaints, provoked
him to issue the threat because that was his only means of
stopping the harassment.
The district court correctly concluded that Williamson
failed to proffer sufficient evidence of inducement for a
reasonable jury to conclude that he was entrapped. It is
undisputed that Williamson made no “showing that the
government agent[s] actually solicited or suggested” that he
make a violent threat against a law enforcement officer. Solofa,
745 F.3d at 1229.
Williamson notes the language in our decision in Sanchez
indicating that “harassment” could also amount to inducement.
See 88 F.3d at 1249. Insofar as government agents’ harassment
could constitute inducement, it could qualify as inducement
under our decisions only if it amounted to a solicitation or
suggestion that he threaten a law enforcement officer, Solofa,
745 F.3d at 1229, and if it sufficed to overcome “a law-abiding
citizen’s will to obey the law,” Glover, 153 F.3d at 754. As to
11
the former, Williamson offered no evidence that the
harassment was so aimed. As to the latter, as the district court
explained, the government harassment, though significant
assuming the truth of the allegations, would not lead a
law-abiding citizen to threaten to murder a federal law
enforcement officer. See Williamson, 2014 WL 12695537, at
*4.
A contrary conclusion, moreover, would risk giving the
entrapment defense an unduly broad sweep. If the alleged
harassment in this case could be seen as adequate inducement
to cause an individual to threaten to assault or murder a federal
law enforcement officer as a means of stopping the harassment,
it might also be seen as adequate inducement to cause him to
commit the assault or murder for the same reason. Beyond the
anomalous results of such an understanding, recognizing
entrapment under such circumstances would take the defense
well beyond its purpose: to prevent law enforcement officers
from “implant[ing] in the mind of an innocent person the
disposition to commit the alleged offense” so that they “may
prosecute” her. Sorrells, 287 U.S. at 442.
For the reasons stated, Williamson failed to introduce
evidence that the government induced him into threatening to
murder Agent Schmitt. The district court thus did not err in
declining to instruct the jury on Williamson’s proposed
entrapment defense.
C.
Williamson argues next that the district court incorrectly
denied him access to jury-commission records he was entitled
to inspect under 28 U.S.C. § 1867. The government concedes
that the district court erred in denying Williamson access to
those records. Both sides are correct.
12
Section 1867(f) allows a defendant to “inspect, reproduce,
and copy” jury records when preparing a motion to challenge
the composition of the jury on the ground that it failed to reflect
a fair cross section of the community. 28 U.S.C. § 1867(a), (f).
The district court denied Williamson access to jury records
because he did not submit a sworn statement accompanying his
request for the records and because he did not plausibly allege
a violation of his right to a jury that represents a fair cross
section of the community. But to access jury records under
section 1867(f), a defendant need not submit a sworn statement
containing such allegations: “a litigant has essentially an
unqualified right to inspect jury lists.” Test v. United States,
420 U.S. 28, 30 (1975) (per curiam). As Williamson points
out, a sworn statement of that kind is required when ultimately
submitting a motion to challenge the composition of a jury
under section 1867(d), but not when seeking to inspect jury
records as the initial step in deciding whether to file such a
motion. See id.
We therefore remand the case for the district court to allow
Williamson access to jury-commission records pursuant to
section 1867(f).
D.
We now take up Williamson’s arguments challenging his
sentence.
1.
After the jury found Williamson guilty of threatening to
murder Agent Schmitt, the district court held a hearing to
determine the sentence. Before the hearing, the court notified
Williamson that it was considering an upward departure from
the sentencing guidelines range in light of a guidelines
13
comment providing that an upward departure might be
warranted if a defendant engages in “a prolonged period of
making harassing communications to the same victim.”
Williamson, 83 F. Supp. 3d at 400 (quoting U.S.S.G. § 2A6.1
cmt. 4(B)).
At the sentencing hearing, the court first determined that
Williamson’s criminal history and offense level yielded a
sentencing guidelines range of 15 to 21 months of
imprisonment. The court then concluded, as it had suggested
in its pre-hearing notice, that it would depart upwards and issue
an above-guidelines sentence based “in part, not entirely, but
in part” on Comment 4(B) of Guidelines Section 2A6.1.
Suppl. App. 348. The court explained that Williamson had
engaged in a series of threatening communications over a
period of years related to Schmitt and the FBI.
The court then went on to consider the factors set out in 18
U.S.C. § 3553(a). It explained that the same considerations
underlying its departure based on Comment 4(B) also
demonstrated that “the seriousness of the offense is quite
grave” for purposes of section 3553(a)(2)(A). Suppl. App. 352.
The court additionally explained that it sought to fix a sentence
that appropriately took into account the importance of
incapacitation, respect for law, and deterrence. See 18 U.S.C.
§ 3553(a)(2)(A)-(C). Based on those considerations, the court
decided to impose a sentence of 96 months of imprisonment
followed by 36 months of supervised release. The court later
issued a written order elaborating on the reasons for its
sentence. See Williamson, 83 F. Supp. 3d 394.
2.
We review sentencing challenges using a two-step
analysis. First, we consider whether the district court
14
committed a “significant procedural error” in arriving at the
sentence. United States v. Lawrence, 662 F.3d 551, 556 (D.C.
Cir. 2011); see Gall v. United States, 552 U.S. 38, 51 (2007).
Second, if the district court’s sentencing decision was
procedurally sound, we consider whether the sentence is
“substantively reasonable.” Lawrence, 662 F.3d at 556. In that
regard, we examine “the totality of the circumstances,
including the extent of any variance from the guidelines range.”
Gall, 552 U.S. at 51. Our review of both the procedural
soundness and substantive reasonableness of a sentence is for
abuse of discretion. Id.
Williamson challenges his sentence on three grounds.
First, he argues that the district court erred in relying on
Comment 4(B) as a basis for departing from the guidelines
range. Second, he contends that the district court unlawfully
increased his sentence based on conduct protected by the First
Amendment. Third, he submits that the length of his term of
imprisonment is substantively unreasonable. Each of those
arguments lacks merit.
a.
Williamson first argues that the district court erred in
departing upwards from the guidelines range based on
Comment 4(B). That comment provides that an upward
departure “may be warranted” if there is “a prolonged period
of making harassing communications to the same victim.”
U.S.S.G. § 2A6.1 cmt. 4(B). Williamson contends that the
district court could not rely on the comment because, in his
view, it applies only if harassing communications are made
directly to the victim rather than to some third party. We
conclude that the district court did not abuse its discretion when
it decided to impose an above-guidelines sentence of 96
15
months of imprisonment based in part on Comment 4(B) and
the concerns underlying it.
The district court’s decision to sentence Williamson above
the guidelines range did not stand or fall on a determination
that the precise terms of Comment 4(B) squarely apply to the
circumstances of this case. To be sure, the court believed that
the comment applies to the facts of the case and relied on the
comment in explaining its decision to sentence Williamson
above the guidelines. But the court made apparent that,
regardless of whether Comment 4(B) directly applies by its
terms, the court’s above-guidelines sentence was warranted in
any event based on the factors set out in section 3553(a) and on
the general concerns animating the comment.
For instance, in considering the need for the sentence “to
reflect the seriousness of the offense,” 18 U.S.C.
§ 3553(a)(2)(A), the court explained that, “with or without the
commentary as to [the] prolonged period of making threats,”
“the duration of these threats, the repetition of these threats,
[and] the increased nature of violence or threatened violence”
all led the court “to find that [the offense is] very serious.”
Suppl. App. 352 (emphasis added). When rejecting
Williamson’s narrower interpretation of the terms of Comment
4(B), the court explained that “the spirit behind Comment
n.4(B) amply applies,” and also noted that Williamson “fail[ed]
to recognize that the Sentencing Guidelines are no longer
mandatory.” Williamson, 83 F. Supp. 3d at 402 & n.6
(emphasis added). Similarly, when the court gave notice to
Williamson that it was considering an upward departure in light
of his prolonged period of threats, it reasoned that “an upward
departure may be warranted” pursuant to “comment n.4(B) and
common sense.” Id. at 400 (emphasis added).
16
Additionally, the court explained that other factors in
section 3553(a) justified its above-guidelines sentence. In
considering the need for the sentence “to promote respect for
the law,” “afford adequate deterrence,” and “protect the public
from further crimes of the defendant,” 18 U.S.C.
§ 3553(a)(2)(A)-(C), the court recounted Williamson’s
criminal history and record of renewing criminal conduct after
release from imprisonment. In light of his nearly immediate
resumption of threatening conduct towards Agent Schmitt
upon release from prison in the past, the court had “no
confidence that Mr. Williamson . . . will be law-abiding in the
future.” Id. at 403. The court found “[m]ost troubling” that
Williamson “already has served an above-Guidelines sentence
in Texas of 42 months for threatening to blow up FBI
headquarters and that sentence failed to deter him from
committing further crimes.” Id. A sentence of 96 months of
imprisonment, the court determined, was necessary to address
those considerations. Id. at 404.
The court’s analysis makes evident that its decision to
impose that sentence would have been the same regardless of
whether the terms of Comment 4(B) directly apply to the
circumstances of the case. And we cannot say that the district
court, relying in part on the section 3553(a) factors and on the
“spirit” animating Comment 4(B), abused its discretion in
concluding that an above-guidelines sentence of 96 months is
appropriate in the circumstances.
b.
Williamson next contends that the district court unlawfully
enhanced his sentence based on First Amendment-protected
activity: namely, his various phone calls and letters petitioning
the government for relief from alleged government harassment.
We conclude that the district court properly considered the
17
history of Williamson’s communications with government
officials in crafting an appropriate sentence.
In Dawson v. Delaware, the Supreme Court held that the
Constitution does not prevent a sentencing court from
considering an individual’s First Amendment-protected
“beliefs and associations” in fixing a sentence, when those
beliefs and associations are relevant to determining an
appropriate sentence. 503 U.S. 159, 165 (1992). Here, all of
the ostensibly First Amendment-protected activity considered
by the district court was relevant to the sentencing decision.
Under Dawson, the court therefore could take into account that
activity in determining a suitable sentence. The court found
that Williamson’s communications established a pattern of
disturbing conduct that worsened over time, bearing on both
the seriousness of his offense and on the need to protect the
public generally (and Agent Schmitt specifically) from harm.
The court did not violate the First Amendment in doing so.
c.
Williamson last argues that his sentence is substantively
unreasonable. We again disagree.
In considering a defendant’s challenge to the substantive
reasonableness of a sentence, we ask the following question:
“In light of the facts and circumstances of the offense and
offender, is the sentence so unreasonably high or unreasonably
low as to constitute an abuse of discretion by the district court?”
United States v. Gardellini, 545 F.3d 1089, 1093 (D.C. Cir.
2008). “It will be the unusual case when an appeals court can
plausibly say that a sentence” is substantively unreasonable in
light of all the circumstances. In re Sealed Case, 809 F.3d 672,
676 (D.C. Cir. 2016) (citation omitted).
18
Williamson was sentenced to 96 months of imprisonment
based on a guidelines range of 15-21 months. Williamson, 83
F. Supp. 3d at 401, 404. According to Williamson, no other
person convicted under 18 U.S.C. § 115(a)(1)(B) with the same
criminal history has received a term of imprisonment so
lengthy as Williamson. See App. 405. We conclude that, while
Williamson’s sentence represents a significant increase above
the upper end of the guidelines range, the district court did not
abuse its discretion in imposing that sentence.
As explained, the district court offered a thorough
explanation for its above-guidelines sentence, based on its
experience with—and assessment of—the facts and
circumstances of the case. The court concluded that
Williamson’s offense was significantly more serious than the
statute captured, that a guidelines sentence would not
adequately deter Williamson in light of his repeated history of
similar misconduct and the failure of a previous
above-guidelines sentence to cause him to correct his ways, and
that he presented a substantial danger to the public and to Agent
Schmitt. The district court thus made “the kind of
defendant-specific determinations that are within the special
competence of sentencing courts.” Gardellini, 545 F.3d at
1095. We cannot conclude that the district court’s sentence
was substantively unreasonable.
III.
Williamson makes a number of additional arguments in his
pro se briefing. We have given those arguments thorough
consideration and have concluded that they lack merit. We
specifically address two of them here: first, Williamson argues
that the district judge should have recused herself; and second,
Williamson argues that his Sixth Amendment right to
self-representation was violated during pre-trial proceedings.
19
A.
Recusal is required under 28 U.S.C. § 455 if “a reasonable
and informed observer would question the judge’s
impartiality.” SEC v. Loving Spirit Found. Inc., 392 F.3d 486,
493 (D.C. Cir. 2004) (citation omitted). Recusal is required
under 28 U.S.C. § 144 if a judge “has a personal bias or
prejudice” either against or in favor of a party. We review the
denial of a motion to recuse under section 455 for abuse of
discretion. Id. We have not decided the appropriate standard
of review with respect to recusal motions filed under
section 144. See id. at 492. Some circuits apply a de novo
standard, while others use abuse of discretion. Id. We need
not resolve the issue here because Williamson’s argument for
recusal fails even under de novo review.
The majority of Williamson’s arguments in favor of
recusal are rooted in legal disagreements with the district
judge’s rulings against him, which do not afford grounds for a
recusal. See id at 493. Williamson also contends that the
district judge dealt with him unduly harshly during pretrial and
trial proceedings. Our review of the proceedings confirms,
however, that the district judge treated Williamson
even-handedly and afforded him significant latitude to make
extended arguments on the issues he wanted to discuss. See
App. 1-41 (documenting numerous motions that Williamson
filed); Suppl. App. 130-208 (defendant’s questioning of Agent
Schmitt at trial); Suppl. App. 311-47 (defendant’s sentencing
arguments). The district court therefore did not err in declining
to grant Williamson’s motion for recusal.
B.
Williamson argues that the district court allowed standby
counsel to take over his defense, infringing his Sixth
20
Amendment right to represent himself at trial. See Faretta v.
California, 422 U.S. 806 (1975). The Supreme Court has
generally upheld the appointment of standby counsel when a
defendant exercises the right of self-representation, subject to
two conditions. “First, the pro se defendant is entitled to
preserve actual control over the case he chooses to present to
the jury.” McKaskle v. Wiggins, 465 U.S. 168, 178 (1984).
“Second, participation by standby counsel without the
defendant’s consent should not be allowed to destroy the jury’s
perception that the defendant is representing himself.” Id.
Here, Williamson’s argument is grounded in a complaint
that standby counsel did not give him sufficient notice of a
pre-trial hearing at which he was asked to justify his request for
access to certain government officials whom he hoped to call
as defense witnesses. The result, Williamson submits, is that
standby counsel effectively blocked him from calling certain
witnesses. Williamson’s contention lacks merit. Williamson
had sufficient time to explain why the witnesses were
necessary to his case and failed to do so. Any actions by
standby counsel in asking for the hearing did not vitiate
Williamson’s control over the case he wanted to present to the
jury, and could not have affected the jury’s perception of
Williamson’s control over the case because the events occurred
before the jury was empaneled.
* * * * *
For the foregoing reasons, we affirm Williamson’s
conviction and sentence except that we remand the case to the
district court so that it can give Williamson access to
jury-commission records consistent with 28 U.S.C. § 1867.
So ordered.