United States v. Williams

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4355
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES JOHN WILLIAMS, a/k/a Shy,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:09-cr-00206-FL-2)
Submitted: March 29, 2011 Decided: April 15, 2011
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David L. Neal, Hillsborough, North Carolina, for Appellant.
George E.B. Holding, United States Attorney, Jennifer P. May-
Parker, Eric D. Goulian, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James John Williams pled guilty, without a plea
agreement, to two counts of distribution of five grams or more
of cocaine base (“crack”), and aiding and abetting the same, in
violation of 21 U.S.C. § 814(a) (2006) and 18 U.S.C. § 2 (2006).
The district court sentenced Williams within the advisory
Guidelines range to concurrent ninety-eight-month terms on each
count. Williams appeals, claiming that his sentence is
unreasonable. Additionally, Williams argues that the recent
changes to the statutory provisions and Sentencing Guidelines
relevant to crack cocaine offenses, contained in the Fair
Sentencing Act of 2010, 1 apply in this case, and thus serve to
reduce his sentencing range. Williams asks us to vacate his
sentence and remand this case to the district court for
resentencing pursuant to these amendments. For the reasons that
follow, we affirm Williams’ sentence.
This court reviews a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007); see also United States v.
Llamas, 599 F.3d 381, 387 (4th Cir. 2010). This review requires
1
Pub. L. No. 111-220, 124 Stat. 2372 (2010) (codified in
scattered sections of Title 21 of the United States Code).
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appellate consideration of both the procedural and substantive
reasonableness of a sentence. Gall, 552 U.S. at 51.
In determining procedural reasonableness, we consider
whether the district court properly calculated the defendant’s
advisory Guidelines range, considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed any arguments presented by the parties,
and sufficiently explained the selected sentence. Id.
“Regardless of whether the district court imposes an above,
below, or within-Guidelines sentence, it must place on the
record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted).
Williams does not dispute the calculation of his
Guidelines range, but argues that his sentence is procedurally
unreasonable because the court failed to carefully consider the
§ 3553(a) factors and provide an adequate reason for its
sentence. A district court is not required to “robotically tick
through § 3553(a)’s every subsection” on the record. United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). The
sentencing court’s explanation must be “sufficient ‘to satisfy
the appellate court that [the district court] has considered the
parties arguments and has a reasoned basis for exercise [its]
own legal decisionmaking authority.’” United States v.
3
Boulware, 604 F.3d 832, 837 (4th Cir. 2010) (quoting Rita v.
United States, 551 U.S. 338, 356 (2007)).
After reviewing the record, we conclude that the
district court properly considered the § 3553(a) factors,
analyzed the arguments presented by the parties, and gave a
thorough explanation of the sentence it selected. We therefore
hold that Williams’ sentence is procedurally reasonable.
Where there is “no significant procedural error,” we
next assess the substantive reasonableness of the sentence,
taking “‘into account the totality of the circumstances,
including the extent of any variance from the Guidelines
range.’” United States v. Morace, 594 F.3d 340, 345-46 (4th
Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S. Ct.
307 (2010). If the sentence is within the appropriate
Guidelines range, this Court may consider it presumptively
reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010).
Citing Rita and Kimbrough v. United States, 552 U.S.
85 (2007), Williams argues that his Guidelines sentence should
not be accorded a presumption of reasonableness, because the
sentencing disparity for crack cocaine and powder cocaine
offenses is not based on empirical evidence and a thorough
review process. However, Kimbrough does not require appellate
courts to discard “the presumption of reasonableness for
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sentences based on non-empirically grounded Guidelines.” United
States v. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir.),
cert. denied, 130 S. Ct. 192 (2009); see also United States v.
Talamantes, 620 F.3d 901, 901 (8th Cir. 2010) (per curiam).
While “district courts certainly may disagree with the
Guidelines for policy reasons and may adjust a sentence
accordingly[,] . . . if they do not, [appellate courts] will not
second-guess their decisions under a more lenient standard
simply because the particular Guideline is not empirically-
based.” Mondragon-Santiago, 564 F.3d at 367. We therefore
conclude that the presumption of reasonableness applies to our
review of Williams’ sentence. Moreover, because we conclude
that Williams failed to overcome the presumption of
reasonableness for his within-Guidelines sentence, we hold that
the district court did not abuse its discretion in sentencing
him within the Guidelines range to conccurrent terms of ninety-
eight months’ imprisonment.
Finally, Williams asks us to vacate his sentence and
remand this case to the district court pursuant to the Fair
Sentencing Act of 2010, which reduces the cocaine powder/cocaine
base disparity by amending the drug quantities triggering the
statutory penalties. However, the Fair Sentencing Act is not
retroactive and is only applicable to defendants who commit
their offenses after its effective date. Williams’ criminal
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conduct predated the effective date of the Act and thus it does
not apply. 2 Accordingly, we reject this contention.
For the foregoing reasons, we affirm Williams’
criminal 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.
AFFIRMED
2
United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010);
United States v. Reevey, 631 F.3d 110, 114-15 (3d Cir. 2010);
United States v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir. 2010),
petition for cert. filed, __ U.S.L.W. __ (U.S. Feb. 24, 2011)
(No. 10-9224); United States v. Bell, 624 F.3d 803, 814 (7th
Cir. 2010), petition for cert. filed, __ U.S.L.W. __ (U.S. Mar.
4, 2011) (No. 10-9409); United States v. Gomes, 621 F.3d 1343,
1346 (11th Cir. 2010), petition for cert. filed, __ U.S.L.W. __
(U.S. Feb. 15, 2011) (No. 10-9271); United States v. Carradine,
621 F.3d 575, 580 (6th Cir. 2010), cert. denied, __ U.S.L.W. __
(U.S. Mar. 21, 2011) (No. 10-8937).
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