United States v. Jarvis Williams

Case: 16-11706 Date Filed: 02/06/2017 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11706
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20626-JEM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JARVIS WILLIAMS,
a.k.a. Fat Twin,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 6, 2017)
Before JORDAN, ROSENBAUM, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Jarvis Williams appeals his concurrent 63-month sentences, imposed after he
pled guilty to conspiracy to possess with intent to distribute cocaine and cocaine
base, in violation of 21 U.S.C. § 846, and possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1). He contends that his sentences are
procedurally unreasonable. He argues that the district court clearly erred by basing
his sentences on quantities of controlled substances that his co-conspirators sold
while he was in custody. He also argues that the district court clearly erred by
applying a two-level firearm enhancement.
I.
When reviewing a sentence, we ensure that the district court did not commit
a significant procedural error such as improperly calculating the guideline range or
selecting a sentence based on clearly erroneous facts. Gall v. United States, 552
U.S. 38, 51 (2007). “We review for clear error a district court’s determination of
the drug quantity attributable to a defendant.” United States v. Azmat, 805 F.3d
1018, 1046 (11th Cir. 2015), cert. denied, 136 S. Ct. 2012 (2016). A finding is
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clearly erroneous if we are “left with a definite and firm conviction that a mistake
has been committed.” United States v. Wilson, 788 F.3d 1298, 1317 (11th Cir.),
cert. denied, 136 S. Ct. 518 (2015).
Arguments raised for the first time on appeal, if they are reviewed at all, are
reviewed for plain error. See United States v. Gonzalez, 834 F.3d 1206, 1217 (11th
Cir. 2016). To establish plain error, a defendant must show that an error exists that
is plain and affects his substantial rights. United States v. Hughes, 840 F.3d 1368,
1384 (11th Cir. 2016). If these requirements are satisfied, we may exercise our
discretion to correct the error, but only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id. at 1384-85. An error is plain if it
is clear or obvious. United States v. DiFalco, 837 F.3d 1207, 1221 (11th Cir.
2016).
Absent specific circumstances, a calculation of the guideline range for an
offense of trafficking in controlled substances begins with a determination of the
quantity of controlled substances involved. See U.S.S.G. § 2D1.1(a), (c); see also
id. § 2D1.1, comment. (n. 7) (stating that quantities are added together where there
are multiple transactions or drug types).
The guideline range in a case involving jointly undertaken criminal activity
is based on both the defendant’s own acts and acts of others that occurred during
the commission of the offense and were “(i) within the scope of the jointly
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undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii)
reasonably foreseeable in connection with that criminal activity.” U.S.S.G.
§ 1B1.3(a)(1). Defining the scope of the criminal activity for a particular
defendant involves determining “the scope of the specific conduct and objectives
embraced by the defendant’s agreement” to participate in the activity. Id. § 1B1.3,
comment. (n. 3(B)). When the scope of a defendant’s participation in a conspiracy
is established, a court then determines the quantities of controlled substances
reasonably foreseeable in connection with that level of participation. United States
v. Hansley, 54 F.3d 709, 714 (11th Cir. 1995).
Upon review of the record and consideration of the parties’ briefs, we see no
reversible error.
The district court did not clearly err by basing Williams’s sentences on
quantities of controlled substances that his co-conspirators sold while he was in
custody: the sales were within the scope of his agreement to participate in the
conspiracy, furthered the conspiracy, and were reasonably foreseeable in
connection with the conspiracy. See U.S.S.G. § 1B1.3(a)(1)(B). Williams
participated in sales of controlled substances both before and after he was in
custody. The record does not reflect that he withdrew from the conspiracy while
he was in custody (for approximately two months), and he resumed his
participation in the conspiracy shortly after being released from custody. That his
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co-conspirators would continue to sell controlled substances while he was absent
was reasonably foreseeable.
Williams argues to us that his co-conspirators expanded the scope of the
conspiracy by selling larger quantities of controlled substances while he was in
custody, but he did not raise this argument to the district court. The district court
did not plainly err by basing Williams’s sentences on the larger quantities because
it is not clear or obvious from the record that Williams had agreed to participate in
sales of only limited quantities of controlled substances.
II.
A factual finding made for sentencing purposes on possession of a firearm is
reviewed for clear error. United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir.
2006). The base offense level for an offense of trafficking in controlled substances
is increased by two levels if “a dangerous weapon (including a firearm) was
possessed.” U.S.S.G. § 2D1.1(b)(1). The enhancement is “applied whenever a
firearm is possessed during conduct relevant to the offense of conviction.” United
States v. Pham, 463 F.3d 1239, 1246 (11th Cir. 2006).
A co-conspirator’s possession of a firearm may be attributed to a defendant
for the purpose of applying the enhancement if the firearm possession “was
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reasonably foreseeable by the defendant, occurred while he was a member of the
conspiracy, and was in furtherance of the conspiracy.” United States v. Villarreal,
613 F.3d 1344, 1359 (11th Cir. 2010). “There is a frequent and overpowering
connection between the use of firearms and narcotics traffic,” and thus it may be
“reasonably foreseeable that a co-conspirator would possess a firearm where the
conspiracy involved trafficking in lucrative and illegal drugs.” Pham, 463 F.3d at
1246.
The district court did not clearly err by applying the two-level firearm
enhancement. Williams argues to us that it was not reasonably foreseeable that
one of his co-conspirators would possess a firearm. He also argues that the record
does not reflect that the co-conspirator possessed the firearm to further the
conspiracy. But Williams did not raise either of these arguments to the district
court. The district court did not plainly err by applying the firearm enhancement
based on the co-conspirator’s possession of a firearm during a meeting where a
confidential informant attempted to purchase a controlled substance from
Williams. That one of the co-conspirators would possess a firearm to protect the
co-conspirators, their inventory of controlled substances, and their profits was
reasonably foreseeable.
AFFIRMED.
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