United States v. Kevin Williams , 910 F.3d 1084 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3040
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kevin Darnell Williams, also known as Splash
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: September 28, 2018
Filed: December 17, 2018
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Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Following a jury trial, Kevin Darnell Williams was convicted of conspiracy to
distribute and possess with intent to distribute marijuana, interference with commerce
by robbery (or a Hobbs Act robbery), using and carrying a firearm during and in
relation to a drug-trafficking offense or a crime of violence, and being a felon in
possession of a firearm. Each count stemmed from the robbery and shooting of an
individual from whom Williams had arranged to purchase large amounts of
marijuana. The district court1 sentenced Williams to 270 months imprisonment.
Williams appeals both his convictions and sentence, arguing that the evidence was
insufficient to support his convictions, that his 18 U.S.C. § 924(c) conviction must
be vacated because a Hobbs Act robbery is not a crime of violence, and that the
district court sentenced him to a prison term for the conspiracy count that exceeded
the statutory maximum, mandating that his sentence be vacated and he be re-
sentenced as to all counts. Having jurisdiction under 18 U.S.C. § 1291, we affirm.
I.
On August 6, 2016, Williams began communicating via text message with an
individual named Leonard Boyd to inquire about purchasing marijuana. Williams
first sent Boyd a message stating, “Watz good this splash.” Boyd informed Williams
that he was running low on marijuana but would soon be traveling to get more, stating
“I’m about to go out of town today all i have is 2 zones left.” Williams asked Boyd
to “[l]et me know when u come back i need that like asap.” On August 8, Williams
communicated via text message with another individual, Vyagales Shaw. Shaw, who
was known by the nickname “V,” initiated the conversation by sending Williams a
message stating, “it was only 2.1 you trying to get him some more,” to which
Williams responded, “yeah.” Williams and Shaw continued to communicate about
when Williams would have more marijuana.
Boyd subsequently traveled to Colorado where he, his girlfriend, and another
individual made legal purchases of canisters of marijuana from licensed Colorado
1
The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
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marijuana dispensaries. Boyd then returned to Iowa with the marijuana. On August
9, after his return, Boyd sent Williams a message stating, “I got 7 more . . . U want
it,” to which Williams replied, “How much you want for it.” Boyd responded, “1750
and they’re all different so you don’t just have the same thing . . . you don’t want it.”
Williams responded, “Yeah I can do that.” Williams provided Boyd the address of
an apartment complex in Ames, Iowa, where the two were to complete the
transaction. Williams then communicated via text message with Shaw, explaining
that Boyd was on the way to the address Williams provided in Ames. Williams and
Shaw exchanged messages about traveling to the location together and arrived at the
apartment complex together in the same vehicle.
Later that same day, officers responded to a 911 call reporting shots fired on
the same street discussed in the text messages between Williams and Boyd. When
officers arrived, they discovered Boyd lying in the street suffering from multiple
gunshot wounds. A witness took a cell phone video of the immediate aftermath of
the shooting before police officers arrived. The video depicted the scene and
included the witness’s voice stating that a black male with long hair fled the scene on
foot while another black male with “like no hair” fled the scene in a sedan, noting the
exact license plate. Another witness reported that she saw two men arguing behind
a car and was “pretty sure” she saw a black male with long hair holding a gun. She
then looked away from the scene, but went outside after hearing what “sounded like
fireworks” and saw Boyd on the ground. This witness administered aid to Boyd until
law enforcement arrived. During this time, Boyd’s girlfriend, who was also present
at the scene, told the witness that Boyd knew his shooter and identified the shooter
to the witness by his nickname, which the witness remembered being short and
starting with the letter “S.”
Another witness went outside to the scene after hearing a loud noise. He
observed a black male with longer hair exit from a nearby apartment by kicking out
a window. The witness and the man looked directly at each other before the man fled
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on foot. Law enforcement later determined that the apartment from which the witness
had observed the man exit via the kicked-out window belonged to Williams’s
girlfriend. Officers executed a search warrant on this apartment the same day, during
which they observed numerous indicia of residency for both Williams and his
girlfriend, and seized two firearms, one bearing Williams’s fingerprint; two boxes of
ammunition, both bearing Williams’s fingerprint; a large bag of marijuana; and
several Ziploc bags bearing Williams’s fingerprints. Officers later obtained text
messages between Williams and his girlfriend, exchanged on the same day as the
shooting, where Williams instructed his girlfriend to “[g]et all that shit out ur house.
Now.”
While responding to the scene, another officer, who had received the radio
report with the witness description of the vehicle leaving the scene, spotted a sedan
that matched the description, including the exact license plate. The vehicle was
driving away from the shooting location. The officer initiated a traffic stop roughly
two blocks away from the shooting location. The individual driving the stopped
vehicle, a black male with short hair, was identified as Shaw. While he was being
placed into the patrol car, Shaw asked the officer to retrieve his cell phone. When the
officer retrieved the phone, he observed that Shaw was receiving an incoming call
from someone listed as “Splash.” The officer later obtained information from the
wireless provider, pursuant to a warrant, for the phone number associated with
“Splash” and determined that the phone was in the name of Williams’s girlfriend and
that geolocation data showed that the phone was accessing cell phone data from
towers near the shooting location at the time of the shooting.
A subsequent search of the vehicle revealed the presence of a backpack in the
back seat, which contained two canisters of marijuana, bags containing marijuana
residue, and a digital scale with marijuana residue on it. The search also uncovered
a black canvas bag in the vehicle’s trunk. Inside this bag, officers observed seven
silver canisters that bore labels stating that the canisters contained specified weights
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of marijuana. Each canister was full. Subsequent laboratory testing revealed that the
substance inside the containers was marijuana. Based on the identification of the
dispensaries from which the marijuana was purchased and surveillance videos of the
purchases, police traced these canisters back to the purchases Boyd and two other
individuals made in Colorado. The canvas bag also contained Ziploc bags and a
handgun. Later ballistics analysis confirmed that the shell casings at the shooting
scene were fired from this handgun. In addition, both Williams and Shaw had been
captured on surveillance video eleven days before the shooting in an Ames store
examining and expressing interest in purchasing two firearms through a third-party
straw man purchaser. The gun used in the shooting and one of the firearms and the
ammunition recovered from Williams’s girlfriend’s apartment were shown being
purchased on this surveillance video.
On August 10, the day following the shooting, Shaw sent Williams a text
message stating, “Just lmk when you read to link I’m bout to try and go crazy out
there.” Williams responded “im gone let uk when im ready bro jus know when I
come im coming hard so we gone have to go all in this shit def for te long haul bro.”
Williams also exchanged text messages with another woman, discussing the fact that
he was on his way to Chicago. The woman replied that there had been a newspaper
article about the incident that identified Williams as the shooter and implied that
Shaw’s only involvement had been as a driver. This woman expressed her view that
“I really feel like he told on baby.” Williams and Shaw exchanged text messages
again the following day. Williams stated, in part “Wat I hear play by play we in this
shit together so I will never leave u in the dark.” Shaw responded that “we def in this
shit together I’m certified in it and out of jail keep yo head up too.” Williams was
eventually apprehended in Chicago. While in custody, he was recorded on telephone
calls discussing the shooting. In one call, Williams stated that he implicated himself
in the shooting by jumping out of the window of his girlfriend’s apartment.
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Williams was charged with one count of conspiracy to distribute and possess
with intent to distribute marijuana, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C);
one count of interference with commerce by robbery (or a Hobbs Act robbery), in
violation of 18 U.S.C. § 1951; one count of using and carrying a firearm during and
in relation to a drug trafficking offense and/or a crime of violence in violation of 18
U.S.C. § 924(c); and one count of being a felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Before trial, Williams filed a motion to
dismiss the § 924(c) count on the basis that a Hobbs Act robbery is not a crime of
violence and thus could not serve as a predicate offense. The district court denied the
motion, and the matter proceeded to jury trial.
The jury convicted Williams on all counts. The district court sentenced
Williams to 150 months imprisonment for the conspiracy count, 150 months
imprisonment for the Hobbs Act robbery count, 120 months imprisonment for the
§ 924(c) count, and 120 months imprisonment for being a felon in possession of a
firearm. The court ordered the sentences for three counts (the conspiracy, Hobbs Act
robbery, and felon-in-possession counts) to run concurrently and ordered that the
sentence for the § 924(c) count run consecutively for a total term of imprisonment of
270 months. This appeal follows.
II.
Williams first asserts the government presented insufficient evidence to support
the jury’s verdict as to each count. When reviewing a claim regarding the sufficiency
of the evidence supporting a criminal conviction, the Court conducts a de novo
review, “viewing evidence in the light most favorable to the government, resolving
conflicts in the government’s favor, and accepting all reasonable inferences that
support the verdict.” United States v. Matthews, 761 F.3d 891, 893 (8th Cir. 2014)
(quoting United States v. Morris, 723 F.3d 934, 938 (8th Cir. 2013)). Reversal for
insufficient evidence is warranted only where the Court concludes that “no reasonable
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jury could find all the elements beyond a reasonable doubt . . . .” United States v.
Wiest, 596 F.3d 906, 910 (8th Cir. 2010).
A.
Williams argues that his conviction for conspiracy to possess with intent to
distribute is not supported by sufficient evidence. Specifically, Williams argues that,
while circumstantial evidence may have shown that Williams and Shaw intended to
possess the marijuana, the evidence was insufficient to allow a jury to conclude that
Williams and Shaw agreed to distribute the substance. We disagree.
“To establish a drug conspiracy, the government must prove the existence of
an agreement between two or more persons to violate federal narcotics law.” United
States v. Smith, 450 F.3d 856, 860 (8th Cir. 2006). Proving that an agreement existed
between the parties requires “a showing the defendant was aware of the purposes of
the agreement and voluntarily participated in the agreement.” Id. In cases charging
conspiracy, the evidence is often circumstantial: “[B]ecause the nature of conspiracy
entails secrecy, the agreement and members’ participation in it must often be
established by way of inference from the surrounding circumstances.” United States
v. Adams, 401 F.3d 886, 894 (8th Cir. 2005) (alteration in original) (quoting United
States v. Cabreva, 116 F.3d 1243, 1245 (8th Cir. 1997)). To successfully secure a
guilty verdict on a conspiracy charge, “the government need not prove an express
agreement.” Id. at 893-94. Instead, the government must “only establish a tacit
understanding between the parties, and this may be shown wholly through the
circumstantial evidence of [the defendant’s] actions.” Id. at 894 (alteration in
original) (internal quotation omitted). And the same holds true for intent to
distribute: circumstantial evidence is sufficient to support a conviction. United States
v. Haney, 23 F.3d 1413, 1417 (8th Cir. 1994).
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The evidence was sufficient to allow the jury to infer that Williams willingly
and voluntarily entered into an agreement with Shaw to possess marijuana with the
intent to distribute it. Taken together, the evidence paints a compelling picture of
Williams’s and Shaw’s tacit agreement to procure marijuana from Boyd for the
purpose of selling it to other individuals. The number of canisters of marijuana, the
drug packaging materials, the presence of firearms, and the shooting of Boyd are
particularly probative of Williams’s and Shaw’s intent to distribute. And our Court
has previously recognized that evidence similar to that presented to the jury here may
be probative of an intent to distribute. See, e.g., id. at 1417 (stating that “the presence
of a firearm is one factor from which a jury may infer an intent to distribute a
controlled substance”); United States v. Schmidt, 662 F.2d 498, 504-05 (8th Cir.
1981) (explaining that packaging materials to aid in apparent distribution showed
evidence of plan or intent to distribute). Ample additional evidence supports the
jury’s conclusion that Williams and Shaw had an agreement to procure and distribute
marijuana, including the communications between Williams and Boyd and Williams
and Shaw; that Williams urged his girlfriend to immediately rid the apartment of
incriminating items; that Williams and Shaw communicated following the robbery
where both expressed that they were “in this together” and discussed when they
would be ready to meet up again; Williams’s flight following the robbery, which
provides a permissible basis to infer guilt, see United States v. Hankins, 931 F.2d
1256, 1261 (8th Cir. 1991); and in recorded phone conversations from jail, Williams
made statements implicating himself in the crime.
Based on the foregoing, a reasonable jury could find Williams guilty of
conspiracy to distribute or possess with intent to distribute beyond a reasonable
doubt. We affirm Williams’s conspiracy conviction.
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B.
Williams next asserts that the government did not present sufficient evidence
to support his conviction for a Hobbs Act robbery because, at most, the evidence
showed that Boyd was shot, that Williams fled the scene, and that Shaw was later
detained with drugs in his vehicle. Williams asserts that this evidence was
insufficient to show that he took the marijuana from Boyd, leaving the jury unable to
conclude beyond a reasonable doubt that Williams committed a robbery. Again, we
disagree.
“A person commits a Hobbs Act robbery if he ‘in any way or degree obstructs,
delays, or affects commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or conspires so to do.’” United States
v. Chaplain, 864 F.3d 853, 857 (8th Cir. 2017) (quoting 18 U.S.C. § 1951(a)).
Robbery is “the unlawful taking or obtaining of personal property from the person or
in the presence of another, against his will, by means of actual or threatened force, or
violence, or fear of injury, immediate or future, to his person or property, or property
in his custody or possession . . . .” 18 U.S.C. § 1951(b)(1). Thus, to convict Williams
of a Hobbs Act robbery, the government was required to prove that Williams robbed
Boyd, the robbery involved marijuana, and Williams’s actions obstructed, delayed,
or affected commerce in some degree. Williams challenges only the sufficiency of
the evidence to prove he actually took the marijuana from Boyd; he does not
challenge any other element.
The evidence is sufficient to support the jury’s conclusion, beyond a reasonable
doubt, that Williams took the marijuana from Boyd. The government introduced
significant circumstantial evidence that Williams and Boyd arranged a drug
transaction; that Williams and Shaw communicated before the transaction and
traveled together to the location in possession of a firearm; that Boyd sustained
gunshot wounds during the transaction; that the marijuana ended up in the trunk of
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the car—that Shaw and Williams had arrived in together—Shaw drove away from the
scene; and that Williams fled the scene following the incident. This evidence
provided the jury a sufficient basis to draw the inferences that Williams arranged the
drug transaction, brought a firearm to the meeting, shot Boyd, took the marijuana and
stashed it in the trunk of the vehicle he arrived in before fleeing on foot as the scene
became more chaotic. Based on these permissible inferences, the jury’s verdict is
supported by sufficient evidence. We affirm Williams’s Hobbs Act robbery
conviction.
C.
Finally, Williams asserts that neither his conviction for using and carrying a
firearm during and in relation to a drug-trafficking offense or a crime of violence nor
his conviction for being a felon in possession of a firearm were supported by
sufficient evidence. As to the use or carrying of a firearm charge, Williams asserts
that the government failed to show that Williams was the shooter or that he possessed
a firearm during the shooting. Because the felon-in-possession-of-a-firearm charge
rested on the possession of the firearm used to shoot Boyd, Williams asserts that his
conviction on the felon-in-possession count is similarly unsupported by sufficient
evidence. Williams’s arguments are without merit.
To sustain a conviction for using or carrying a firearm during or in relation to
a drug trafficking offense or a crime of violence, the government had to prove that
Williams committed conspiracy to distribute or possess with intent to distribute
marijuana (a drug trafficking crime) or a Hobbs Act robbery (a crime of violence) and
that he knowingly used or carried a firearm during or in relation to either of theses
offenses. See 18 U.S.C. § 924(c). As discussed in Parts II.A and II.B, supra, the
evidence supported the jury’s guilty verdict for the conspiracy and Hobbs Act robbery
counts. As to the § 924(c) conviction, Williams challenges only the jury’s conclusion
that he used or carried a firearm.
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A conviction for a felon-in-possession-of-a-firearm charge requires the
government to prove that the defendant has “a prior felony conviction, that he
knowingly possessed a firearm, and that the firearm . . . affected interstate
commerce.” United States v. Lofton, 557 F.3d 594, 596 (8th Cir. 2009). The only
element at issue at trial was whether Williams possessed the firearm; the parties
stipulated that Williams had a prior felony conviction and that the subject firearm
affected interstate commerce. To prove possession, the government may introduce
circumstantial evidence that requires the jury to infer that the defendant possessed a
firearm; the government need not provide evidence of direct observation of the
defendant with the firearm. See United States v. Light, 406 F.3d 995, 997-98 (8th
Cir. 2005).
The evidence was sufficient to allow the jury to infer that Williams possessed
the firearm during the incident so as to sustain both verdicts. The evidence included
witness statements that an African American man with long hair—which was
consistent with Williams’s appearance at the time of the incident—was seen holding
a gun and fleeing the scene; witness statements regarding the very different
appearance of Shaw, who “had like no hair”; testimony that Boyd identified his
shooter by a nickname starting with the letter “S”; evidence of Williams’s nickname
“Splash”; Williams’s admission on a jail phone call that he jumped out of the window
of his girlfriend’s apartment, thereby implicating himself in the crime; Williams’s
flight to Chicago following the incident; and surveillance video from the store where
the firearm used in the shooting and the firearm recovered from Williams’s
girlfriend’s apartment were purchased, which captured Williams examining the
firearms. Based on this evidence, we conclude that the government presented
sufficient evidence to allow the jury to conclude, beyond a reasonable doubt, that
Williams was the party who possessed and used the firearm during the robbery of
Boyd. We affirm both Williams’s § 924(c) and felon-in-possession convictions.
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III.
Williams next argues that, independent of his challenges to the sufficiency of
the evidence, his conviction under 18 U.S.C. § 924(c) should be vacated because a
Hobbs Act robbery is not a crime of violence, as defined in § 924(c)(3), and cannot
serve as a predicate offense to a § 924(c) charge, either under the § 924(c)(3)(A) force
clause or the § 924(c)(3)(B) residual clause, the latter of which Williams asserts is
unconstitutionally vague.
Section 924(c)(1)(A) provides that
any person who, during and in relation to any crime of
violence or drug trafficking crime (including a crime of
violence or drug trafficking crime that provides for an
enhanced punishment if committed by the use of a deadly
or dangerous weapon or device) for which the person may
be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall [be guilty of a separate offense.]
Under the plain language of § 924(c) and as charged in the indictment, Williams
could be found guilty of a § 924(c) offense if he used or carried a firearm during or
in relation to a crime of violence or a drug trafficking offense. Because we affirm
Williams’s conviction for conspiracy to possess with intent to distribute, which is
undisputedly a drug-trafficking offense, the predicate offense necessitated by § 924(c)
is satisfied without regard to whether a Hobbs Act robbery qualifies as a crime of
violence.
Williams himself acknowledges as much, explicitly conceding in his brief and
at oral argument that his argument is predicated on a reversal of the drug conspiracy
conviction. Appellant’s Br., at 21 (“If this Court determines that sufficient evidence
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exists to support the Hobbs Act robbery conviction and the § 924(c) conviction but
vacates the conspiracy to possess with intent to distribute conviction for insufficient
evidence, Williams asserts that his § 924(c) conviction must be vacated because
Hobbs Act robbery is not a crime of violence under § 924(c).”).2
IV.
Williams finally asserts that the district court sentenced him to a term of
imprisonment that exceeds the statutory maximum for his conspiracy conviction and
that his entire sentence must be vacated and he must be re-sentenced on all counts.
The district court sentenced Williams to 150 months imprisonment on the conspiracy
count, which the parties agree exceeds the 60-month statutory maximum based upon
the quantity of marijuana involved. Williams was charged with conspiracy under 21
U.S.C. §§ 846 and 841(b)(1)(C), which carries a statutory maximum of 20 years
imprisonment. However, as shown at trial and in the Presentence Investigation
Report, the quantity of marijuana involved in the offense resulted in the penalty
appropriately falling under § 841(b)(1)(D), which carries a statutory maximum of 60
months imprisonment. Williams asserts that this sentencing error mandates that his
entire sentence be vacated and the matter remanded for re-sentencing.
Williams did not raise any objection before the district court regarding this
sentencing error; we thus review this argument for plain error. See United States v.
Campbell, 764 F.3d 874, 878 (8th Cir. 2014). To prevail on a claim of plain error, a
2
Additionally, we note that other panels of this Court have explicitly held that
a Hobbs Act robbery is a crime of violence under § 924(c)(3)(A). See Diaz v. United
States, 863 F.3d 781, 783-84 (8th Cir. 2017); United States v. House, 825 F.3d 381,
387 (8th Cir. 2016). And because other panels of our Court have held that a Hobbs
Act robbery is a crime of violence under the § 924(c)(3)(A) force clause, any
argument regarding the constitutionality of the § 924(c)(3)(B) residual clause would
have no bearing on the classification of a Hobbs Act robbery as a crime of violence.
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defendant “must establish (1) error, (2) that the error was plain, and (3) that the error
affected [his] substantial rights.” United States v. Maynie, 257 F.3d 908, 918 (8th
Cir. 2001). A defendant’s substantial rights are affected where “the error
prejudicially influenced the outcome of the district court proceedings.” Id. at 919(internal quotation marks omitted). In the context of a sentencing error, “the
defendant must show a ‘reasonable probability,’ based on the appellate record as a
whole, that but for the error he would have received a more favorable sentence.”
United States v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005). If the defendant
successfully establishes these three requirements, “we may notice the error but only
if it ‘seriously affects the fairness, integrity, or public reputation of judicial
proceedings.’” Maynie, 257 F.3d at 918 (quoting Johnson v. United States, 520 U.S.
461, 467 (1997)).
The government concedes that the district court indeed committed plain
sentencing error but asserts that Williams cannot show the requisite prejudice to
vacate his sentence because, regardless of the error, Williams would have received
the same total sentence. The district court sentenced Williams to 150 months
imprisonment for the Hobbs Act robbery, with the sentence running concurrently with
the conspiracy sentence. Thus, the government argues, Williams’s total sentence
would not be reduced even if he were sentenced to the appropriate statutory
maximum for the conspiracy conviction. Williams asserts that the sentencing-
packaging doctrine requires that, regardless of his concurrent sentence of the same
length, he must be re-sentenced. “Under the sentencing package doctrine, we ‘may
vacate the entire sentence on all counts so that, on remand, the trial court can
reconfigure the sentencing plan to ensure that it remains adequate to satisfy the
sentencing factors in 18 U.S.C. § 3553(a).’” United States v. McArthur, 850 F.3d
925, 943 (8th Cir. 2017) (quoting Greenlaw v. United States, 554 U.S. 237, 253
(2008)). The sentencing-package doctrine is often seen “in cases involving
‘multicount indictments and a successful attack by a defendant on some but not all
of the counts of conviction.’” Id. (quoting Greenlaw, 554 U.S. at 253).
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This Court has previously held that, if the sentence for one count exceeds the
statutory maximum for that count, remand and re-sentencing is unnecessary where the
same sentence could be lawfully imposed on another count. United States v.
Bossany, 678 F.3d 603, 606-07 (8th Cir. 2012). In Bossany, the Court considered the
defendant’s argument that, under a plain error standard of review, his 90-month
sentence for conspiracy exceeded the 60-month statutory maximum, requiring that his
sentence be vacated and the matter be remanded for re-sentencing. Id. at 606. The
Court determined that, while the error was plain, remand was not appropriate because
the defendant had been convicted and sentenced on a separate count for which a 90-
month sentence was within the statutory maximum and the defendant failed to show
that the sentencing error resulted in his receiving a higher total term of imprisonment
than he would have in the absence of the error. Id. at 606-07.
In rejecting the defendant’s argument, the Court stated that, “[r]egardless of the
error, [defendant] would have been sentenced to 90 months in prison because the
court imposed an identical prison term” for a separate offense with a statutory
maximum of 240 months. Id. at 606. In concluding that the defendant failed to show
how the above-statutory-maximum sentence affected his substantial rights under these
circumstances, the Court noted that “an illegal sentence alone does not establish the
prejudice necessary for plain error relief,” and stated that precedent “require[s the
defendant] to show that, absent the error, the court could not have imposed 90
month’s imprisonment as his total punishment, which of course, he cannot do since
the court legally imposed that sentence on another count.” Id. at 606-07. Just as the
defendant in Bossany could not show that, but for the sentencing error, the district
court could not have imposed the same total punishment, Williams cannot show that
the district court could not have sentenced him to the same total punishment because
the district court “legally imposed that sentence on a separate count.” See id. at 607.
After careful review, we do not conclude that remand is necessary to allow the
district court to “reconfigure the sentencing plan to ensure that it remains adequate
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to satisfy the [§ 3553(a) sentencing factors.]” McArthur, 850 F.3d at 943 (quoting
Greenlaw, 554 U.S. at 253). The district court sentenced Williams at the top of the
guidelines range and explicitly noted during sentencing that the nature of the offenses
warranted a top-of-the-guidelines-range sentence, stating “I have considered the
seriousness of these offenses. These are exceedingly serious offenses because of the
effort gone through to acquire weapons and the violence that miraculously didn’t
result in death.” Sent. Tr. at 6. Remanding to allow the district court to reconsider
the § 3553(a) factors is unnecessary; the district court’s stated reasons for imposing
the specific sentence hold true, even accounting for the sentencing error. There is no
indication that the district court would have imposed a different sentence for either
of the two other counts for which Williams received a 150-month sentence or that the
district court’s evaluation of the § 3553(a) factors would have been different in light
of the correct statutory maximum for the conspiracy count. Williams has failed to
demonstrate a reasonable probability that he would have received a more favorable
sentence, accounting for the correct statutory maximum for the conspiracy count. We
affirm Williams’s sentence.
V.
For the foregoing reasons, we affirm Williams’s convictions and sentence.
______________________________
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