United States v. Nalen Williams

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 7 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30089
Plaintiff-Appellee, D.C. No.
2:17-cr-00138-RAJ-1
v.
NALEN PIERRE WILLIAMS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted June 3, 2019**
Seattle, Washington
Before: D.W. NELSON, RAWLINSON, and BEA, Circuit Judges.
Defendant-Appellant Nalen William was convicted of being a felon in
possession of a firearm, and for possession of heroin with intent to distribute. He
appeals the district court’s sentence of 52 months—15 months above the high end
of the U.S. Sentencing Guidelines (U.S.S.G. or “the Guidelines”) range—and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
seeks remand for resentencing. We review the district court’s factual findings for
clear error, United States v. Kaplan, 839 F.3d 795, 804 (9th Cir. 2016). Because we
find the defendant’s arguments unpersuasive, we affirm the district court’s
sentence of 52 months. We remand for the limited purpose of allowing the district
court to correct the Statement of Reasons form.
1. The district did not make improper factual findings when fashioning the
defendant’s sentence. First, the district court’s observation that the defendant and
his brother “aggressively and violently killed another human being” is supported
by the record. Regardless of who dealt the deadly blow, it’s undisputed that the
defendant and his brother used crude weapons—a shovel and a pitchfork—to target
and attack another person. Defense counsel even agreed with this high-level
description of the defendant’s conduct. Similarly, the district court’s second
observation—that the attack was the result of a drug deal gone bad and that the
defendant and his brother had options other than attacking the victim—is supported
by the record, including an opinion by the Court of Appeals of Washington
upholding the defendant’s murder conviction. See State v. Williams, 97 Wash.
App. 1002 (1999).
Finally, the district court made these observations in the context of
discussing the defendant’s history of violence. It was this history of violence that
informed the district court’s decision to fashion a sentence 15 months above the
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Guidelines range. To the extent the district court did engage in fact finding, a
preponderance of the evidence supported the findings of facts related to the
defendant’s sentencing. See United States v. Treadwell, 593 F.3d 990, 1000 (9th
Cir. 2010) The district court did not commit clear error.
2. The district court did not err when it included the defendant’s second-
degree murder conviction to calculate his criminal history score. First, the
defendant did not raise this issue during the sentencing hearing. We review issues
raised on appeal that were not presented to the district court for plain error. See
United States v. Lloyd, 807 F.3d 1128, 1139–40 (9th Cir. 2015). Second, a
defendant cannot attack a state court conviction during a federal sentencing
proceeding unless the claim is that the conviction is the result of a violation of the
defendant’s right to appointed counsel. See Custis v. United States, 511 U.S. 485
(1994); USSG § 4A1.2 Application Note 6. That is not the case here. Rather, the
defendant claims that we should ignore his state court conviction because an
intervening Washington Supreme Court decision held, as a matter of statutory
interpretation, that the language of the second-degree murder statute under which
he was convicted precludes assault as a predicate felony for second-degree murder.
See In re Personal Restraint Petition of Shawn Andress, 147 Wash. 2d 602 (2002).
While the defendant’s underlying argument as to the validity of this state court
conviction likely has merit, his remedy lies in state court. The district court,
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therefore, did not commit plain error because its decision did not seriously affect
the fairness, integrity, or public reputation of the proceedings. Lloyd, 807 F.3d at
1139.
3. During the sentencing hearing, the district court announced a total offense
level of 15, a criminal history category of IV, and a Guidelines rage of 30 to 37
months. The defendant did not object, nor did he ask for a downward departure
under USSG § 4A1.3. Accordingly, this was the district court’s final Guidelines
calculation. Any discussion about the appropriate sentence after this announcement
was made pursuant to the district court’s responsibility to consider the factors in 18
U.S.C. § 3553(a). After considering the Section 3553(a) factors, the district court
found that the defendant’s history of violence warranted a 15-month upward
variance. The defendant has not persuaded us that this sentence was unreasonable.
See United States v. Ellis, 641 F.3d 411, 421 (9th Cir. 2011).
4. The oral pronouncement of a sentence controls if there is a discrepancy
between the oral pronouncement and the written judgment. See United States v.
Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015). An error in the written judgment
does not warrant remand for resentencing. Id. Moreover, the Statement of Reasons
form is not part of the judgment. See 28 U.S.C. § 994(w)(1)(B); see also Pub. L.
No. 111–174, § 4, 124 Stat. 1216, 1216 (May 27, 2010). Since an error in the
written judgment does not warrant resentencing, neither does a discrepancy on the
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Statement of Reasons form. Accordingly, we remand so that the district court can
make the Statement of Reasons form consistent with the oral pronouncement.
Hernandez, 795 F.3d at 1169.
We REMAND with an instruction to amend the Statement of Reasons form
to conform with the oral pronouncement of the sentence; otherwise, we AFFIRM.
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