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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10006
Non-Argument Calendar
________________________
D.C. Docket Nos. 3:18-cr-00011-HES-PDB-1,
3:12-cr-00179-TJC-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ERIC WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 20, 2019)
Before MARTIN, NEWSOM and HULL, Circuit Judges.
PER CURIAM:
John Eric Williams appeals his 40-month imprisonment sentence for
escaping an institutional facility, in violation of
18 U.S.C. §§ 751 and 4082. On
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appeal, Williams argues that his sentence is procedurally unreasonable because the
district court (1) failed to notify him that it was contemplating an upward departure
from his federal sentencing guidelines range of 27 to 33 months’ imprisonment,
(2) failed to explain adequately the upward departure, and (3) imposed the upward
departure solely because his criminal history category inadequately accounted for
his criminal record. Williams also argues that his sentence is substantively
unreasonable. After review, we affirm Williams’s 40-month sentence.
This appeal involves Williams’s escape from a halfway house where he was
serving his sentence on two firearm convictions.
I. BACKGROUND
A. Underlying Convictions and Escape
As background, in October 2013, Williams pled guilty to stealing or
unlawfully taking or carrying away a firearm from a licensed firearms dealer, in
violation of
18 U.S.C. § 922(u) and possessing a firearm as a convicted felon, in
violation of
18 U.S.C. § 922(g)(1). Williams’s convictions were based on an
incident in which he entered a gun shop in Jacksonville, Florida and took a firearm
packaged for delivery to an online customer. The district court sentenced Williams
to 70 months’ imprisonment.
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In May 2017, the Bureau of Prisons transferred Williams to a halfway house
in Jacksonville to complete his imprisonment sentence. At that time, Williams’s
anticipated release date was February 2, 2018.
On July 14, 2017, Williams left the halfway house to work a shift at a
construction company. After work, Williams contacted the halfway house and
notified them that he was on his way back. On the way back to the halfway house,
Williams stopped at a female friend’s house and ended up falling asleep. When
Williams woke up the next morning, he panicked, realizing that he had missed
curfew. Williams never returned to the halfway house, and he was listed as an
escapee. Williams acknowledged that, after he did not return to the halfway house,
he fell back into his old habits of dealing with stress by using drugs and selling
drugs to support his drug habit.
On August 10, 2017, state law enforcement officers arrested Williams for
selling $20 worth of cocaine base to an undercover officer in Duval County,
Florida. A search incident to the arrest revealed additional cocaine in Williams’s
pocket. Williams was charged in state court with the sale or delivery of cocaine
and possession of cocaine.
On September 27, 2017, Williams was convicted of both charges and
sentenced to 13 months’ imprisonment. After Williams served his state sentence,
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federal authorities took him into custody, on July 11, 2018, for having escaped
from the halfway house.
A federal indictment charged Williams with one count of escaping an
institutional facility in which he was lawfully confined, in violation of
18 U.S.C.
§§ 751 and 4082. In August 2018, Williams pled guilty, without a plea agreement,
before a magistrate judge at a change of plea hearing. The district court accepted
Williams’s guilty plea.
B. Presentence Investigation Report re: Escape Conviction
The presentence investigation report (“PSI”) assigned Williams a base
offense level of 13, pursuant to U.S.S.G. § 2P1.1(a)(1). After a two-level
reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a),
Williams’s total offense level was 11.
Williams’s criminal history category was VI based on his criminal history
score of 25 points. Prior to his escape conviction, Williams had 60 criminal
convictions. His scored convictions included (1) burglary of a structure or
conveyance, (2) attempted burglary of a structure, (3) attempted robbery,
(4) stealing or unlawfully taking or carrying away a firearm from a licensed
firearms dealer, (5) possessing a firearm as a convicted felon, (6) sale or delivery
of cocaine, (7) possession of cocaine, (8) using or possessing with intent to use
drug paraphernalia (twice), (9) tampering with evidence, (10) uttering a forged bill,
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(11) theft, (12) petit theft (five times), (13) shoplifting, and (14) resisting or
opposing a retail merchant. His unscored convictions included several additional
drug and theft offenses, among others.
With a total offense level of 11 and a criminal history category of VI,
Williams’s advisory guidelines range was 27 to 33 months’ imprisonment.
Williams’s escape conviction was subject to a statutory maximum term of five
years’ imprisonment. The PSI advised that any term of imprisonment for the
escape conviction would be consecutive to the undischarged term of imprisonment
Williams was serving for his underlying 2013 firearm convictions at the time of his
escape.
The PSI also identified “USSG §4A1.3—Criminal History Adequacy” as a
potential ground for departure. Neither Williams nor the government objected to the
PSI.
C. Sentencing Memorandum
Before his sentencing hearing, Williams’s counsel filed a sentencing
memorandum, which detailed Williams’s life history. Williams’s stepfather
physically and verbally abused him while growing up. Because of that abuse, he
dropped out of high school, turned to drugs at a young age, and became addicted to
cocaine, marijuana, and alcohol. He also noted that much of his criminal history
derived from living as a homeless man. Williams requested 24 months’
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imprisonment, to be served consecutively to the undischarged term of
imprisonment he was serving at the time of his escape. He also requested drug and
mental health counseling.
D. Sentencing Hearing
In December 2018, the district court held Williams’s sentencing hearing.
After confirming there were no objections, the district court adopted the factual
findings and guidelines calculations in the PSI. The district court stated that it had
read the PSI and Williams’s sentencing memorandum and then proceeded to hear
the parties’ arguments about sentencing.
The government reviewed the factual details of the escape conviction and
noted Williams’s worsening criminal history, specifically the attempted robbery at
age 34, motor vehicle theft at age 37, burglary of a structure at age 41, and stealing
or unlawfully taking away a firearm from a licensed firearms dealer and possession
of a firearm by a convicted felon at age 43. The government detailed Williams’s
history of drug abuse and asked for a guidelines range sentence, which was 27 to
33 months. The government recommended a guidelines range sentence because
Williams had not taken opportunities to better himself, had endangered others
through his criminal conduct, and would continue endangering himself and the
community so long as he consumed drugs.
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Williams then presented his sentencing arguments. He reviewed the facts,
contained in his sentencing memorandum, relating to his abusive stepfather,
lifelong drug use, and criminal history. Williams described how he never moved
past what had happened to him as a child and how he spent the rest of his life
self-medicating with drugs. He detailed his recovery at the halfway house, the
circumstances leading to his escape, his breakdown, and his return to drug use. He
explained that his escape was a minor one, and that he was only away from the
halfway house for a few months. But Williams acknowledged that he had a
“horrible, terrible [criminal] record.” He explained the penalties he would face in
prison and the sentences he had left to serve. He concluded by asking the court to
consider the totality of his circumstances and requested 24 months’ imprisonment,
as well as a drug rehabilitation program and mental health counseling.
Williams and his sister personally addressed the district court. Williams’s
sister described the abuse they both had suffered as children. In allocution,
Williams accepted responsibility for his actions, described his childhood abuse and
the effect it has had on his life, and told the district court that he wanted to improve
his mental health and become a better person.
The district court stated that it had listened to both parties’ arguments and
had read the PSI and the sentencing memorandum. The district court sentenced
Williams to 40 months’ imprisonment, consecutive to the term of imprisonment
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imposed for his underlying 2013 firearm offenses, and three years’ supervised
release. The court also ordered that Williams participate in substance abuse and
mental health programs. The district court stated that it had considered the
advisory guidelines range, as well as the
18 U.S.C. § 3553(a) factors, and found the
40-month sentence sufficient, but not greater than necessary, to comply with the
purposes of sentencing.
Further, the district court noted that it had departed from the advisory
guidelines range under U.S.S.G. § 4A1.3 because Williams’s “criminal history
[category] of a VI substantially under-represent[ed] the seriousness of [his]
criminal history and the likelihood that [he would] commit crimes in the future.”
The government did not object to the 40-month sentence. Williams objected
to the sentence and the manner in which the sentence was pronounced, stating that
it was an upward departure and that he was not given notice that the district court
was going to depart upward.
After sentencing Williams, the district court filed a Statement of Reasons
that stated that the court had departed from the advisory guidelines range, citing
“4A1.3 Criminal History Inadequacy.”
II. PROCEDURAL REASONABLENESS
On appeal, Williams argues that his sentence is procedurally unreasonable
because the district court (1) failed to notify him that it was contemplating an
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upward departure, (2) failed to explain adequately the upward departure, and
(3) imposed the upward departure solely because his criminal history category
inadequately accounted for his criminal record.
A. Notice of Upward Departure
As to notice, Williams argues that the district court violated Federal Rule of
Criminal Procedure 32(h) by departing upward on a ground—the inadequacy of his
criminal history category—that was not identified in the PSI or in a party’s
presentencing submission and without giving him reasonable notice that it was
considering such a departure.
We review de novo legal questions concerning the Federal Rules of Criminal
Procedure. United States v. Spears,
443 F.3d 1358, 1361 (11th Cir. 2006). Rule
32(h) provides that “[b]efore the court may depart from the applicable sentencing
range on a ground not identified for departure either in the [PSI] or in a party’s
prehearing submission, the court must give the parties reasonable notice that it is
contemplating such a departure.” Fed. R. Crim. P. 32(h). “The notice must
specify any ground on which the court is contemplating a departure.”
Id.
Williams’s argument is belied by the record. Here, the PSI provided
Williams with notice that the district court might depart upward citing specifically
to U.S.S.G. § 4A1.3. The PSI stated, “The probation officer has identified the
following as potential grounds for departure: USSG §4A1.3—Criminal History
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Adequacy.” That statement in Williams’s PSI informed him that § 4A1.3, which
authorizes both upward and downward criminal history departures, would
potentially be at issue at his sentencing hearing.
The reference to § 4A1.3 in Williams’s PSI did not explicitly mention the
possibility of either an upward or downward departure. However, given
Williams’s lengthy and serious criminal history, any reasonable defendant would
have understood that the references to § 4A1.3 and criminal history adequacy
meant that an upward criminal history departure, rather than only a downward
departure, might be imposed at sentencing. See United States v. Dixon,
71 F.3d
380, 384 (11th Cir. 1995) (“We find it impossible to believe that the probation
officer’s focus on [the defendant’s] 28 criminal history points, his extensive history
of crime, and the seriousness of his criminal actions could have been interpreted as
harbingers of a downward departure.” (quotation marks and emphasis omitted)).
Indeed, prior to his escape conviction, Williams had 60 other criminal
convictions. His scored convictions involved serious offenses, including burglary,
robbery, theft, forgery, drug, and firearm offenses, resulting in 25 criminal history
points. His numerous unscored convictions included several additional drug and
theft offenses. At sentencing, Williams even acknowledged that he has a “horrible,
terrible [criminal] record.” Thus, Williams’s argument that the PSI failed to
adequately notify him of a potential upward departure is meritless.
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B. Explanation of Upward Departure
Williams next argues that the district court failed to explain adequately its
decision to depart upward based on the inadequacy of his criminal history
category.
We review de novo the adequacy of the district court’s explanation for a
sentence. United States v. Ghertler,
605 F.3d 1256, 1262 (11th Cir. 2010). Under
18 U.S.C. § 3553(c), a district court is required to state in open court the specific
reasons for imposing a particular sentence, including a sentence outside the
advisory guidelines range.
18 U.S.C. § 3553(c)(2).
The length and amount of detail describing the district court’s reasoning
depends on the circumstances. Rita v. United States,
551 U.S. 338, 356,
127 S. Ct.
2456, 2468 (2007). It is sufficient for the district judge to “set forth enough to
satisfy the appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.”
Id. The
adequacy of the explanation should be analyzed in light of the context and the
record. See
id. at 359,
127 S. Ct. at 2469. If the case is “conceptually simple . . .
and the record makes clear that the sentencing judge considered the evidence and
arguments,” the judge need not make extensive comments.
Id.
Here, the record demonstrates that the district court’s explanation for the
upward departure was sufficient. The district court stated that an upward departure
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under § 4A1.3 was warranted because Williams’s criminal history category of a VI
substantially under-represented the seriousness of his criminal history and the
likelihood that he would commit future crimes. The PSI summarized Williams’s
criminal record. At sentencing, the government emphasized how Williams had
committed more serious crimes as he had gotten older, including attempted
robbery at age 34, motor vehicle theft at age 37, burglary of a structure at age 41,
and stealing or unlawfully taking away a firearm from a licensed firearms dealer
and possession of a firearm by a convicted felon at age 43. Williams
acknowledged his “horrible, terrible [criminal] record,” but stressed that his
criminal history stemmed from his childhood abuse and asked the district court to
consider the totality of his circumstances. The district court stated that it had
listened to both parties’ arguments and had read the PSI and Williams’s sentencing
memorandum. The district court also explained that it had considered the advisory
guidelines range and the
18 U.S.C. § 3553(a) factors, and found a 40-month
sentence sufficient, but not greater than necessary, to comply with the purposes of
sentencing. In light of the context and record in Williams’s case, no further
explanation was necessary. See
id. at 358-59,
127 S. Ct. at 2469 (explaining that
an extensive explanation of a sentence was not required where the context and
record made clear that sentencing court considered evidence and arguments and
found circumstances insufficient to warrant lower sentence).
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C. Basis for Upward Departure
Williams also argues that the district court’s reasons for imposing an upward
criminal history departure were not compelling because Williams’s criminal
history category already accounted for his criminal record.
We review a decision to depart upward for an abuse of discretion. United
States v. Magluta,
418 F.3d 1166, 1184 (11th Cir. 2004). The Sentencing
Guidelines provide that a district court may impose an upward departure based on
the inadequacy of a defendant’s criminal history category “[i]f reliable information
indicates that the defendant’s criminal history category substantially
under-represents the seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1).
A sentencing court may base an upward criminal history departure on, among other
things, prior sentences not used in computing the criminal history category and
prior sentences of substantially more than one year imposed as a result of
independent crimes committed on different occasions. Id. § 4A1.3(a)(2)(A) & (B).
The magnitude of “upward departures will be reviewed for reasonableness, based
on findings by the district court as to (1) why the extent and nature of the
defendant’s criminal history warrants an upward departure from category VI, and
(2) why the sentencing range within which the defendant is sentenced is
appropriate to the case.” Dixon,
71 F.3d at 383.
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As an initial point, to the extent that Williams argues that the district court
abused its discretion by even considering his criminal record for its upward
departure because it was already accounted for in his criminal history category, the
Sentencing Guidelines explicitly contemplate a departure based on a defendant’s
criminal history. See U.S.S.G. § 4A1.3(a)(1).
Here, the district court reasonably concluded that an upward departure was
warranted because Williams’s criminal history category of VI substantially
under-represented the seriousness of his criminal history and the likelihood that he
will commit other crimes. See id. As explained above, at sentencing, Williams’s
scored convictions included serious burglary, robbery, theft, forgery, drug, and
firearm offenses, resulting in 25 criminal history points. See id. § 4A1.3,
comment. n.2(B). And Williams had committed those more serious crimes as he
had gotten older. See id. Several of those convictions involved sentences of
substantially more than one year. See id. § 4A1.3(a)(2)(B). Williams also had
numerous unscored convictions, including several more drug and theft offenses.
See id. § 4A1.3(a)(2)(A). Indeed, after Williams escaped from the halfway house,
he returned to committing crimes by using drugs and selling drugs to support his
drug habit. See id. § 4A1.3(a)(1).
Considering the entirety of the record, the district court did not abuse its
discretion in determining that Williams’s criminal history category of VI
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substantially under-represented the seriousness of his criminal history and the
likelihood that he will commit other crimes. The district court’s upward departure
to 40 months’ imprisonment was only 7 months above the top of Williams’s
advisory guidelines range of 27 to 33 months and was clearly within the district
court’s discretionary authority.
III. SUBSTANTIVE REASONABLENESS
Finally, Williams argues that his sentence is substantively unreasonable
because the district court did not significantly consider the § 3553(a) factors.
We review the reasonableness of a sentence using a “deferential
abuse-of-discretion standard.” Gall v. United States,
552 U.S. 38, 41,
128 S. Ct.
586, 591 (2007). A party challenging substantive reasonableness has the burden of
showing that the sentence is unreasonable in light of the record and the § 3553(a)
factors. 1 United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010).
Although, in choosing a sentence, the district court must consider the
§ 3553(a) factors, the district court is not required to address each factor separately
or to state that a particular factor is not applicable. United States v. Bonilla, 463
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public from the defendant’s further crimes; (5) the need to
provide the defendant with needed educational or vocational training or medical care; (6) the
kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements
of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and
(10) the need to provide restitution to victims.
18 U.S.C. § 3553(a).
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F.3d 1176, 1182 (11th Cir. 2006). Rather, an acknowledgement that the district
court has considered the defendant’s arguments and the § 3553(a) factors generally
will suffice. See United States v. Docampo,
573 F.3d 1091, 1100 (11th Cir. 2009).
The weight given to any § 3553(a) factor is a matter committed to the sound
discretion of the district court. United States v. Clay,
483 F.3d 739, 743 (11th Cir.
2007). We will vacate a sentence “if, but only if, we are left with the definite and
firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” United States v. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation marks omitted).
Williams has not shown that his 40-month sentence is substantively
unreasonable. The district court explicitly stated on the record that it considered
Williams’s sentencing memorandum, the parties’ arguments, the advisory
guidelines range, and the § 3553(a) factors and ultimately concluded that
Williams’s criminal history category under-represented the seriousness of his
criminal history and the likelihood he would commit additional crimes. The
district court’s statements at sentencing were more than sufficient to show it
considered the § 3553(a) factors, in particular Williams’s personal history and
characteristics and the need to protect the public from his future crimes. See
Docampo,
573 F.3d at 1100;
18 U.S.C. § 3553(a)(1) & (2)(C).
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Indeed, when Williams escaped from the halfway house, he was serving a
70-month sentence for two firearms convictions. And his criminal record included
60 prior convictions, some of which were serious offenses. All of Williams’s prior
terms of imprisonment and convictions had not deterred him from escaping and
continuing to commit crimes.
In light of these circumstances, the district court reasonably determined that
a modest, 7-month upward departure to a 40-month sentence was warranted.
Moreover, Williams’s 40-month sentence is 20 months below the 5-year statutory
maximum term of imprisonment, which is an indication that the sentence is
reasonable. See United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008)
(comparing, as one indication of reasonableness, the sentence imposed against the
statutory-maximum penalty).
IV. CONCLUSION
On this record, Williams has not shown that his 40-month sentence was
procedurally or substantively unreasonable. Accordingly, we affirm Williams’s
sentence.
AFFIRMED.
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