United States v. James Williams ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 21-2039
_______________
UNITED STATES OF AMERICA
v.
JAMES WILLIAMS,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 2-17-cr-00645-001)
District Judge: Honorable Gene E.K. Pratter
_______________
Submitted Under Third Circuit L.A.R. 34.1(a):
April 6, 2023
_______________
Before: CHAGARES, Chief Judge; GREENAWAY, JR., and PORTER,
Circuit Judges.
(Filed: April 14, 2023)
______________
OPINION
______________

This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not
binding precedent.
PORTER, Circuit Judge.
A jury convicted James Williams of various drug and firearm offenses, but he
claims that the District Court denied him his Sixth Amendment right to represent himself
and wrongfully applied the Sentencing Guidelines’ career offender enhancement. We
disagree. But Williams is correct that, in entering concurrent sentences of 162 months on
the four counts of conviction, the District Court sentenced him beyond the statutory
maximum term then authorized by 18 U.S.C. § 922(g)(1). So we will affirm the judgment
of conviction as to counts one, two, and three, vacate the sentence imposed for count five,
and remand for resentencing on count five only.1
I
We exercise plenary review of a claim that a district court violated a defendant’s
right to self-representation. United States v. Peppers, 302 F.3d 120, 127 (3d Cir. 2002).
That right is firmly rooted in our legal system, “find[ing] support in the structure of the
Sixth Amendment, as well as in the English and colonial jurisprudence from which the
Amendment emerged.” Faretta v. California, 422 U.S. 806, 818 (1975).
“It is undeniable that in most criminal prosecutions defendants could better defend
with counsel’s guidance than by their own unskilled efforts.” Id. at 834. Thus, a
defendant must state his request to proceed pro se “unambiguously to the court so that no
reasonable person can say that the request was not made.” Buhl v. Cooksey, 233 F.3d 783,
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
790 n.9 (3d Cir. 2000) (quoting Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir.
1986)). And courts must “indulge in every reasonable presumption against waiver.”
Brewer v. Williams, 430 U.S. 387, 404 (1977). Judges who receive a clear and
unambiguous waiver must conduct a colloquy with the defendant and make him aware of
“the dangers and disadvantages of self-representation.” Faretta, 422 U.S. at 835.
Before trial, Williams expressed dissatisfaction with defense counsel and asked to
be appointed new representation. The District Court denied his request, a decision
Williams does not challenge. Also before trial, Williams, defense counsel, and the
government worked with the District Court to subpoena two cell phone providers for
recordings of phone conversations involving his codefendant and a confidential
informant. The providers responded that they did not possess responsive recordings. This
was unsurprising because there was no record of a wiretap for those calls.
Nevertheless, at a hearing on April 4, 2019, defense counsel argued to the District
Court that the providers’ responses were ambiguous and suggested that the defense might
subpoena individuals from both providers. The District Court responded that it would not
limit the defense’s ability to call witnesses, but that, in the Court’s view, the providers
had complied with the subpoena and the testimony of individual employees of the
providers would likely be irrelevant at trial. The Court also indicated that it was not
inclined to delay trial, which was scheduled to begin in less than a week. The below
exchange followed:
THE COURT: No, there’s no inference [that the recordings may exist]. The
only thing is that the witness is called to come in and testify and take the
3
jury’s time and they don’t know anything on the point that you’re asking
them.
WILLIAMS: Can I proceed pro se for a minute?
THE COURT: Pardon?
WILLIAMS: Can I proceed pro se for a minute so I can speak for myself
because there’s case law specific to this situation.
THE COURT: No, there isn’t, sir.
App. 80.
Williams then insisted that providers can be required to turn over responsive
records, but he did not acknowledge that the providers in question had already informed
the Court that they did not possess any. The Court responded, “[i]t’s defense counsel’s
strategy and I’m not—” before defense counsel interrupted and Williams made what he
claims was a clear, unequivocal request to proceed pro se:
DEFENSE COUNSEL: If my client is requesting I subpoena the individuals, then
I’m going to have to subpoena them. If they’re not available, then I would be
requesting a continuance from the Court.
WILLIAMS: I would like to move pro se from this moment forward.
THE COURT: No, we’re not going to do this again until you think it through.
WILLIAMS: I have. I have.
App. 81. The Court then addressed defense counsel and again advised her that she could
call individuals from each provider, subject to objections about relevance, and that the
Court was unlikely to issue a continuance.
In sum, Williams asked to “proceed pro se for a minute,” and then, a few minutes
later, “to move pro se from this moment forward.” In many other contexts, these
statements would be enough to effect a waiver of the right to counsel. But it is not clear
4
to us now, and it certainly was not clear to the District Court during the hearing in
question, that Williams wanted to fire his appointed defense counsel and assume all
aspects of his defense. Instead, we agree with the District Court that the record suggests
that Williams wanted to “glide in and out of self-representation.” App. 279. There is no
constitutional right to a hybrid arrangement where a defendant proceeds pro se at some
points and is represented by counsel at others. McKaskle v. Wiggins, 465 U.S. 168, 183
(1984).
Williams proceeded to trial without further objection to his representation by
counsel. After trial, Williams wrote a letter to the District Court and asked “to proceed[]
in a pro se capacity . . . representing [himself]” with standby counsel. App. 106. The
District Court held a hearing on the motion, conducted a Faretta colloquy, and allowed
Williams to proceed pro se. In contrast to this unambiguous post-trial request, Williams’
pretrial statements about self-representation were far from clear and unambiguous, and
the Supreme Court requires trial judges to “indulge in every reasonable presumption
against waiver.” Brewer, 430 U.S. at 404. So we reject Williams’ claim that the District
Court erred in denying him the right to proceed pro se before his trial.
II
The career offender provision of the Guidelines dramatically increases a
defendant’s sentencing range if he has previously been convicted of two “crimes of
violence” or “controlled substance offenses.” U.S.S.G. § 4B1.1(a). Before his most recent
arrest, Williams was twice convicted of violating 35 Pa. Stat. Ann. § 780-113(a)(30),
which prohibits manufacturing, delivering, or possessing with the intent to manufacture
5
or deliver a controlled substance. The District Court correctly determined that these
convictions were for controlled substance offenses as defined by the Guidelines and
applied the enhancement.
Courts apply the categorical approach to determinate whether a state offense
triggers an enhancement articulated in the Guidelines. See United States v. Brasby, 61
F.4th 127, 133–34 (3d Cir. 2023). That approach requires judges to ignore the
defendant’s actual conduct and instead “compare the elements of [the state] statute with
the relevant Guidelines provision—here, § 4B1.2(b)’s definition of a ‘controlled
substance offense.’ ” United States v. Dawson, 32 F.4th 254, 260 (3d Cir. 2022). “If the
statute proscribes a broader range of conduct than the Guideline, then a conviction for the
state offense will not count as a controlled substance offense.” Id.Williams originally argued that his prior convictions under § 780-113(a)(30) do
not count as controlled substance offenses because the statute punishes the attempted
transfer of a controlled substance. The Guidelines definition does not mention attempt
offenses—it covers “manufacture, import, export, distribution or dispensing of a
controlled substance”—so Williams maintained that § 780-113(a)(30) was not a
categorical match. Appellant’s Br. at 32 (citing U.S.S.G. § 4B1.2(b)). We recently
rejected Williams’ argument in Dawson. 32 F.4th at 258–59. We explained that “§ 780-
113(a)(30) is a completed offense which, in one definition, uses the word ‘attempted’ in
its ordinary sense.” Id. at 259 (citing United States v. Havis, 929 F.3d 317, 319 (6th Cir.
2019) (Sutton, J., concurring in the denial of en banc reconsideration)).
6
Williams also argued that § 780-113(a)(30) punishes the “administering” of
controlled substances, while the Guidelines do not go so far. See § 780-102(b). We
considered this theory in United States v. Womack and found it without merit. 55 F.4th
219, 238–40 (3d Cir. 2022). We held that § 780-113(a)(30) “expressly excludes the
possibility that ‘administering,’ as defined in Section 780-102, falls within its scope.” Id.
at 239.
In a letter filed with the Court, Williams commendably acknowledged that
Dawson and Womack foreclose his arguments that his convictions under § 780-
113(a)(30) do not qualify as controlled substance offenses under the Guidelines. As a
result, all agree that the District Court properly applied the career offender enhancement.
III
The District Court sentenced Williams to four concurrent terms of 162 months.
One of the counts of conviction, count five, was for possession of a firearm as a
prohibited person in violation of 18 U.S.C. § 922(g)(1). When Williams was arrested, that
offense had a maximum sentence of 10 years, so the District Court’s sentence of 162
months was improper. See 18 U.S.C. § 924(a)(2) (2017). 2 Williams did not object when
the District Court imposed this sentence. Had he done so, we are confident the District
2
Congress recently increased the maximum penalty to 15 years. Bipartisan Safer
Communities Act, Pub. L. 117-159, 136 Stat. 1313, 1329 (2022), codified at 18 U.S.C. §
924(a)(8). The revised penalty does not apply to Williams because a law “that changes
the punishment, and inflicts a greater punishment, than the law annexed to the crime,
when committed,” violates the ex post facto clause, U.S. Const. art. 1, § 9, cl. 3. Calder v.
Bull, 3 U.S. 386, 390 (1798) (emphasis added).
7
Court would have corrected the error in real time. But a sentence that exceeds the
statutory maximum is plainly erroneous, so we will remand for the District Court to
resentence Williams on count five only. United States v. Gunter, 527 F.3d 282, 288 (3d
Cir. 2008), vacated on other grounds, 129 S. Ct. 2051 (2009).
IV
We reject Williams’s claims that he was denied the right to represent himself and
that the District Court improperly sentenced him as a career offender, but he is correct
that the Court sentenced him beyond the statutory maximum under § 922(g)(1). We will
affirm the judgment of conviction on counts one, two, and three. We will vacate the
sentence imposed for count five and remand solely for resentencing on that count.
8