United States v. Williams

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5048
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RICHARD ALLEN WILLIAMS,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:09-cr-00006-FPS-JES-1)
Submitted: September 30, 2010 Decided: October 18, 2010
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant. Betsy C. Jividen, Acting United
States Attorney, Randolph J. Bernard, John C. Parr, Assistant
United States Attorneys, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Allen Williams appeals his 110-month prison
sentence after pleading guilty to possession with intent to
distribute 312 80-mg oxycodone tablets and 214 30-mg oxycodone
tablets in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2006).
On appeal, Williams contends the district court erred in denying
him a reduction for acceptance of responsibility under U.S.
Sentencing Guidelines Manual (USSG) § 3E1.1 (2008), in denying
him a downward departure under USSG § 4A1.3(b), and in denying
him a downward variance based on his criminal history arguments.
We dismiss the appeal in part and affirm the judgment.
We review a sentence imposed by the district court
under a deferential abuse-of-discretion standard. See Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires us to ensure that the district court committed
no significant procedural error, such as improperly calculating
the guideline range, failing to consider the 18 U.S.C. § 3553(a)
(2006) factors, or failing to adequately explain the sentence.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We
then consider the substantive reasonableness of the sentence
imposed, taking into account the totality of the circumstances
and giving “due deference to the district court’s decision.”
Gall, 552 U.S. at 51. On appeal, we presume that a sentence
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within a properly calculated guideline range is reasonable.
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
Williams first contends the district court erred in
denying him a reduction for acceptance of responsibility. We
review the district court’s decision for clear error. See
United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). We
“must give ‘great deference’ to the district court’s decision
because ‘[t]he sentencing judge is in a unique position to
evaluate a defendant’s acceptance of responsibility.’” Id.(quoting USSG § 3E1.1, comment. (n.5)). “To earn the reduction,
a defendant must prove to the court by a preponderance of the
evidence ‘that he has clearly recognized and affirmatively
accepted personal responsibility for his criminal conduct.’”
Id. (quoting United States v. Nale, 101 F.3d 1000, 1005 (4th
Cir. 1996)). “A guilty plea may be evidence of acceptance, but
‘it does not, standing alone, entitle a defendant to a reduction
as a matter of right.’” Id. (quoting United States v. Harris,
882 F.2d 902, 905 (4th Cir. 1989)).
After pleading guilty, Williams tested positive for
oxycodone. Because he did not have a prescription and was
unlawfully in possession of the drug, the probation officer
concluded his conduct was inconsistent with acceptance of
responsibility under USSG § 3E1.1, comment. (n.1). At
sentencing, Williams proffered that he had a lengthy addiction
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to pain medication, but had quit using the drugs. However,
after suffering an attack of kidney stones, he took some
oxycodone to relieve the pain. He acknowledged he could have
gone to a doctor for a prescription but did not do so. The
district court accepted Williams’s proffer that he used the drug
for kidney stones, but noted the fact that he had not gone to a
doctor where it was presumed he would have been given some
medicine or other treatment. The district court found Williams
had not presented sufficient evidence to show that a reduction
for acceptance of responsibility was warranted, and we conclude
the court did not clearly err in this finding.
Williams next contends the district court erred in
denying his request for a reduction in criminal history category
under USSG § 4A1.3(b)(1), and his alternative request for a
variance based on the same arguments. While he conceded his
criminal history category of V was properly determined under the
guidelines, he argued it over-represented the seriousness of his
criminal history because his prior convictions were for minor
offenses; his sentences for two of the convictions were ordered
to be run concurrently; and while many of his convictions were
outside the applicable period and not assessed points, his first
convictions receiving points were just inside the applicable
period. After hearing his arguments, the district court found
there was insufficient reliable information indicating his
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criminal history category substantially over-represented the
seriousness of his criminal history or the likelihood that he
would commit other crimes to warrant a downward departure. The
court likewise concluded his arguments were not sufficient to
warrant a variance, and that a guideline sentence was sufficient
but not greater than necessary to address the sentencing factors
under § 3553(a). The district court sentenced Williams at the
low end of his 110 to 137-month guideline range. The court’s
decision not to grant a downward departure is not reviewable on
appeal, and we dismiss this portion of Williams’s appeal. See
Allen, 491 F.3d at 193. We further conclude he has shown no
abuse of discretion by the district court in denying a variance
and sentencing him at the low end of his guideline range.
We therefore dismiss the appeal in part, and affirm
the district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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