United States v. Williams , 240 F. App'x 995 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
8-27-2007
USA v. Williams
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2402
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2402
UNITED STATES OF AMERICA
v.
SEBASTIAN WILLIAMS,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 02-cr-00935-2)
District Judge: Hon. Garrett E. Brown, Jr.
Submitted under Third Circuit LAR 34.1(a)
on March 29, 2007
Before: FISHER, JORDAN and ROTH, Circuit Judges
(Filed: August 27, 2007)
OPINION
ROTH, Circuit Judge:
Sebastian Williams appeals the judgment of sentence imposed on him by the United
States District Court for the District of New Jersey. He asserts violations of his Sixth
Amendment right to a jury trial and his Fifth Amendment right to Due Process. Williams
also asserts that the District Court erred in applying certain sentencing enhancements under
the now-advisory Guidelines. Because the District Court satisfied the requirements we set
forth in United States v. Cooper, 437 U.S. F.3d 324 (3d Cir. 2006), and because Williams’s
constitutional claims are foreclosed, we will affirm.
I. Background and Procedural History
This case arose from a conspiracy to rob armored trucks that were transporting cash
to and from various retail stores and banks. The conspiracy, which involved appellant
Sebastian Williams, co-defendant Louis Hyman, and conspirators Kevin Henry and Dwayne
Jones, involved two separate robberies. The first one occurred in March 2002. Williams and
Hyman posed as construction workers and successfully held up the armored truck driver.
The presentence report states that either Williams or Hyman, or possibly both of them, was
armed. The second robbery occurred five months later, in August 2002. Williams was
supposed to function as the “get-away” driver, but the plan was foiled and a shootout
between an armed security guard and Williams’s co-conspirators ensued, resulting in the
arrest of all four conspirators.
Williams was charged with two counts of conspiracy to rob an armored truck in
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violation of 18 U.S.C. § 1951 (the Hobbs Act). He was also charged with one count of using
and carrying a firearm in connection with the first robbery, in violation of 18 U.S.C. §
924(c)(1)(A)(ii). In March 2003, Williams was convicted by a jury on all three counts.
Williams was originally sentenced before the Supreme Court decided United States
v. Booker, 543 U.S. 220 (2005). With a total offense level of 31, Williams faced a
Guidelines range of 135 to 168 months imprisonment. The District Court sentenced
Williams under the then-mandatory Guidelines to 140 months on each of the two robbery
counts, to be served concurrently. Williams received an additional mandatory sentence of
84 months imprisonment for the § 924(c) conviction, to be served consecutively, for a total
term of 224 months imprisonment, followed by three years of supervised release. The court
also ordered Williams to pay $650,896.55 in restitution.
Williams appealed. In May 2005, we affirmed the convictions but vacated and
remanded for resentencing in light of Booker. At resentencing, the District Court referred
to and agreed with the factual findings it had made at the original sentencing hearing to arrive
at the same now-advisory Guideline range of 135 to 168 months. The District Court then
considered the 18 U.S.C. § 3553(a) factors. Citing Williams’s “history of recidivism,” the
court imposed the same sentence as before, finding a total term of 224 months to be
“necessary,” “reasonable,” and “sufficient,” given the various factors surrounding the case.
Williams timely appealed.
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II. Jurisdiction and Standard of Review
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
For questions of law, including the constitutionality of a guideline’s application, we
review the matter de novo. United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir. 2005). We
exercise plenary review over the District Court’s interpretation of the Sentencing Guidelines.
United States v. Newsome, 439 F.3d 181, 184 (3d Cir. 2006). Additionally, we review
underlying factual determinations made by the District Court for clear error. United States
v. Tupone, 442 F.3d 145, 149 (3d Cir. 2006).
III. Discussion
A. Jury Trial Right
Williams contends that, in light of Booker, sentencing facts found by the District
Court should have been found by the jury beyond a reasonable doubt. However, in Cooper,
we held that “[a]s before Booker, the standard of proof under the guidelines for sentencing
facts continues to be preponderance of the evidence.” United States v. Cooper, 437 F.3d 324,
330 (3d Cir. 2006). Therefore, the District Court’s factfinding by a preponderance of the
evidence as to Guidelines enhancements did not violate the Sixth Amendment.
B. Due Process
Williams contends that the ex post facto principles of the Due Process Clause were
violated by the District Court’s retroactive application of the remedial portion of the Booker
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opinion. Williams argues that he received a sentence for pre-Booker conduct that is above
the maximum applicable Guidelines range that could be established by the jury’s verdict.
This argument is foreclosed by our decision in United States v. Pennavaria, 445 F.3d 720 (3d
Cir. 2006), where we joined our sister circuits in holding that sentencing under the advisory
Guidelines does not violate ex post facto principles inherent in the Due Process Clause. Id.
at 724. Therefore, the District Court did not violate Williams’s rights under the Constitution.
C. Enhancement for Intended but Unrealized Amount of Loss
Williams claims that the District Court erred, after considering U.S.S.G. § 2B3.1 and
§ 2X1.1, in imposing a four-level sentence enhancement for the intended but unrealized loss
arising from the August 2002 robbery . We disagree.
Williams argues that § 2B3.1(b)(7)(E) only allows for enhancements based on actual
loss incurred by the robbery. See § 2B3.1, Application Note 3. However, Williams was
convicted of conspiracy to violate 18 U.S.C. §1951 (Hobbs Act). Therefore, § 1B1.2(a)
instructed the District Court to “refer to § 2X1.1 as well as the guideline referenced [sic] in
the Statutory Index for the substantive offense.” Under § 2X1.1, when a robbery is
unsuccessful, the amount of money intended to be stolen can be considered. The District
Court correctly examined § 2X1.1 as well as § 2B3.1. See United States v. Martinez, 342
F.3d 1203, 1205-6 (10th Cir. 2003) (§ 2X1.1 is applicable loss guideline for attempted bank
robbery); United States v. Diaz, 248 F.3d 1065, 1109 n.62 (11th Cir. 2001) (court correctly
referred to § 2X1.1 which provides that in an attempted theft, court should consider the value
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of the items the defendant attempted to steal).
D. Enhancement for Co-Conspirator Brandishing Gun
Williams argues that the District Court committed clear error by enhancing his
sentence pursuant to U.S.S.G. § 2B3.1(b)(2)(C) for brandishing a firearm. “Brandished”
means that “all or part of the weapon was displayed, or the presence of the weapon was
otherwise made known to another person, in order to intimidate that person, regardless of
whether the weapon was directly visible to that person.” U.S.S.G. § 1B1.1, Application Note
1(C).1 Williams alleges that this enhancement should not apply to him because there is no
evidence in the record that any co-conspirator brandished or possessed a weapon during the
August 2002 robbery.2 Williams’s claim, however, is contrary to the armored truck guard’s
testimony. At trial, the guard testified that he believed one of the attackers had a gun,
pointed it at him, and may have even fired the weapon. This testimony supported the District
Court’s finding that a gun was brandished by Williams’s co-conspirator. Because
brandishing a gun was a reasonably foreseeable act in furtherance of a jointly undertaken
criminal activity, See U.S.S.G. § 1B1.3(a)(1)(B), the District Court properly enhanced
Williams’s sentence. Therefore, the District Court did not err by enhancing Williams’s
1
Section 2B3.1 incorporates U.S.S.G. § 1B1.1's definition of “brandished.” U.S.S.G.
§ 2B3.1, Application Note 1.
2
The government’s brief notes that this argument contradicts Williams’s assertions
that Jones, co-conspirator, had actually fired a weapon during the August robbery.
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sentence under U.S.S.G. § 2B3.1(b)(2)(C).3
E. 18 U.S.C. 924(c)(1)(A)(ii) Enhancement
Williams contends that his Sixth Amendment rights were violated when he was
sentenced to a consecutive seven-year term of imprisonment under § 924(c) for brandishing
the firearm. Williams contends that he should have received a five-year term instead, for
mere use or carrying of a firearm, as found by the jury. Williams’s claim lacks legal support.
In Harris v. United States, 536 U.S. 545 (2002), the Supreme Court held that brandishing or
discharging a firearm in violation of 18 U.S.C. § 924(c) are sentencing factors, rather than
elements of the offense, that a judge may find to increase a mandatory minimum sentence.4
Id. at 558. The standard of proof under the guidelines for sentencing facts is a
preponderance of the evidence. Cooper, 437 F.3d at 330. Therefore, the District Court
properly enhanced Williams’s sentence.
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Williams argues that even if the guard did see a gun, it must have been either a fake
gun or merely the hand of one of the conspirators. There is nothing in the record that even
remotely supports this claim. The guard’s sworn testimony shows that, while he was not
certain whether a gun had been discharged, he was certain he saw a gun.
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Williams argues that Harris was overruled by Booker. Other Circuits have held
Harris has not been overruled. See e.g. United States v. Dare, 425 F.3d 634, 641 (9th Cir.
2005) (“We agree that Harris is difficult to reconcile with the Supreme Court’s recent Sixth
Amendment jurisprudence, but Harris has not been overruled.”); United States v. Jones, 418
F.3d 726, 732 (7th Cir. 2005) (“Under Harris, which the Supreme Court did not disturb in
Booker, imposition of the . . . mandatory minimum sentence for a violation of
924(c)(1)(A)(iii) . . . did not violate the Sixth Amendment.”).
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IV. Conclusion
For the foregoing reasons, we will affirm the judgment of sentence.
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