United States v. Williams , 261 F. App'x 563 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4808
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARIUS ABDULE WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (5:05-cr-00254-FL)
Submitted: December 3, 2007 Decided: January 7, 2008
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Deborrah L. Newton, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P.
May-Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darius Abdule Williams appeals his1 74-month sentence for
conspiring in a check counterfeiting scheme, in violation of 18
U.S.C. § 371 (2000), aiding and abetting a check counterfeiting
scheme, in violation of 18 U.S.C. § 513(a) (2000), and using false
identification to obtain property by false pretenses, in violation
of 18 U.S.C. § 1028(a)(7) (2000). Williams contends that his
sentence was unreasonable and that prosecutorial misconduct
interfered with his counsel’s effectiveness.
We review the sentence to determine whether it is
reasonable, applying an abuse of discretion standard. Gall v.
United States, 552 U.S. ___, ___, 2007 WL 4292116 *7 (U.S. Dec. 10,
2007) (No. 06-7949). After United States v. Booker, 543 U.S. 220
(2005), a district court is no longer bound by the range prescribed
by the sentencing guidelines. A district court’s decision to
depart from the advisory guidelines is reviewed for abuse of
discretion, based upon the factors set forth in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2007). Gall, 522 U.S. ___, ___ 2007
WL 4292116 *12. In reviewing a sentence outside the guidelines
range, this court considers “the extent of the deviation, [and]
1
We note that Williams is a male-to-female transgendered
individual who has undergone hormone therapy but not gender-
transformative surgery. The Government consistently refers to
Williams by his birth gender; Williams consistently refers to
herself by her perceived gender. For the sake of consistency, we
refer to Williams by his birth gender in this opinion.
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must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.”
Id. A sentence is unreasonable if the “court provides an
inadequate statement of reasons or relies on improper factors in
imposing a sentence outside the properly calculated advisory
sentence range.” United States v. Hernandez-Villanueva, 473 F.3d
118, 123 (4th Cir. 2007) (applying rule in context of variance
sentence). “The district court need not discuss each factor in §
3553(a) in checklist fashion; it is enough to calculate the range
accurately and explain why (if the sentence lies outside it) this
defendant deserves more or less.” United States v. Moreland, 437
F.3d 424, 432 (4th Cir. 2006) (citation and internal quotes
omitted) (variance sentence).
Relying on U. S. Sentencing Guidelines Manual (USSG) § 4A1.3
(2006), the district court imposed a sentence of 74 months. This
is 17 months, or thirty percent, above the top of the pre-departure
advisory range. According to USSG § 4A1.3, a district court may
depart upward from an applicable guidelines range if “reliable
information indicates that the criminal history category does not
adequately reflect the seriousness of the defendant’s past criminal
conduct or the likelihood that the defendant will commit other
crimes.” USSG § 4A1.3. The guideline further directs that “[i]n
a case in which the court determines that the extent and nature of
the defendant’s criminal history, taken together, are sufficient to
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warrant an upward departure from Criminal History Category VI, the
court should structure the departure by moving incrementally down
the sentencing table to the next higher offense level in Criminal
History Category VI until it finds a guideline range appropriate to
the case.” USSG § 4A1.3(a)(4)(B).
Williams contends that the district court’s upward
departure was unreasonable because his criminal history consists
mostly of minor offenses, other than his most recent state court
convictions, which are for conduct that comprises part of the same
scheme as the offenses charged in this case. Williams also argues
that the departure was unreasonable because he did not receive
sufficient consideration for his guilty plea and acceptance of
responsibility.2 Williams contends that the district court did not
properly balance the factors in § 3553(a) and, instead, focused
almost exclusively on his criminal history. Williams argues that
the district court overemphasized the crimes he committed while he
was using crack cocaine and suffering from mental health problems,
while ignoring the probability that he will overcome his substance
abuse and mental health issues through treatment while he is
incarcerated.
The district court correctly found that many of
Williams’s prior convictions were for offenses of a similar nature
2
Williams received a three-level downward adjustment for
acceptance of responsibility, the greatest adjustment provided in
USSG § 3E1.1
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to those involved in this case, and that he has far more prior
convictions than necessary to place him in Criminal History
Category VI, indicating that a departure was warranted, based upon
his history, because he is likely to commit other crimes in the
future. Although many of Williams’s prior convictions were for
minor offenses, the district court found that the seriousness of
Williams’s offenses has escalated over time. Williams argues that
his most recent state court convictions involved the same scheme as
the instant case, but not that he was wrongly convicted or that
they involved precisely the same conduct as the instant case.
The district court properly proceeded to move
incrementally down the sentencing table to higher offense levels in
Criminal History Category VI, determining that each level did not
impose an adequate sentence until it reached offense level 20. See
United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007). Using
level 20, the court imposed a sentence of 74 months’ imprisonment,
near the low end of the guidelines range, based upon Williams’s
arguments for mitigation. The overall sentence imposed reasonably
reflects Williams’s extensive criminal history, composed largely of
similar offenses, many of which he committed while he was on
probation, which was not adequately reflected by the sentencing
range available at the pre-departure offense level of 16. Although
the district court did not elaborate on the § 3553(a) factors in
checklist fashion, the court adequately stated that it had
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considered those factors and properly explained its decision to
depart upward based upon the guidelines by describing Williams’s
escalating history of obtaining property or services by false
pretenses. Accordingly, we conclude that the district court did
not abuse its discretion in imposing Williams’s sentence. Gall,
522 U.S. at ___, 2007 WL 4292116, *11.
Williams argues that prosecutorial misconduct interfered
with his counsel’s effectiveness, because the Government refused to
offer him a plea agreement or move to reduce his sentence in
exchange for his cooperation with an investigation, allegedly based
upon Williams’s counsel’s ongoing conflicts with the Government in
other criminal cases. On direct appeal, this court may address a
claim that counsel was ineffective only if the ineffectiveness
appears conclusively on the face of the record. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). The record does not
conclusively show that Williams received ineffective assistance of
counsel or that there was any prosecutorial misconduct due to the
Government’s failure to reduce his sentence in exchange for his
cooperation or to offer him a plea agreement. Although Williams
argued at his sentencing hearing that the upward departure won by
the Government should be mitigated by the Government’s failure to
offer him a sentence reduction in exchange for cooperation,
Williams did not argue that the Government had failed to move for
such a reduction in retaliation for events that took place in other
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cases, or otherwise allege that the failure to move for a reduction
or offer a plea agreement constituted prosecutorial misconduct.
Absent evidence of prosecutorial misconduct or resulting
ineffective assistance on the face of the record, we decline to
consider these claims on direct appeal.
We affirm the sentence imposed by the district court.
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
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