United States v. Josiah Williams ( 2007 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 06-3418
    ___________
    United States of America,                 *
    *
    Appellee,                    *
    * Appeal from the United States
    v.                                  * District Court for the Northern
    * District of Iowa.
    Josiah Williams, also known as            *
    Little Man,                               *
    *
    Appellant.                   *
    ___________
    Submitted: February 12, 2007
    Filed: May 17, 2007
    ___________
    Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
    ___________
    BENTON, Circuit Judge.
    Josiah Malachi Israel Williams stands convicted of one count of distributing,
    and aiding and abetting the distribution of, crack cocaine within 1,000 feet of a school.
    See 
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(B)(iii), 860, and 
    18 U.S.C. § 2
    . On appeal, he
    argues the district court1 erred by: not entering a guilty plea; not reducing his sentence
    for acceptance of responsibility; increasing his sentence for obstruction of justice;
    1
    The Honorable Linda R. Reade, Chief Judge, United States District Court for
    the Northern District of Iowa.
    finding the substance was crack (as opposed to “cocaine base”); and, not running his
    sentence concurrent to a state sentence. This court affirms.
    I.
    In fall 2003, Iowa special agent Darrell Simmons bought a gram of crack and
    some marijuana from Barb Shaurette. Simmons said he was “looking to move a lot
    of crack cocaine, make some money.” Shaurette arranged for him to buy one ounce
    of crack and one ounce of marijuana from her supplier for $1,400.
    On October 3, they met again. Shaurette called to find out where to pick up the
    drugs, and took Simmons to an apartment within 1,000 feet of a grade school.
    Maurice Malone answered the door, Shaurette asked for “Little Man,” and defendant
    Josiah Williams appeared. Lamarr Parks also was present. Entering the apartment,
    Williams and Parks took Simmons to a bedroom, where Parks strip-searched him
    while Williams looked on. As Simmons re-dressed, Williams asked what he planned
    to do with the drugs. When Simmons replied “sell it,” Williams said, “cool.”
    Simmons returned to the living room, sitting on the couch. In the kitchen,
    Williams and Parks assembled a bag of crack and a bag of marijuana. Williams
    emerged from the kitchen, placed the bags on the arm of the couch, and asked
    Simmons for $1,500. Simmons replied the deal was for $1,400. Williams countered,
    “No, $1,500.” Simmons said he only had $1,400. Williams said “That’s okay,”
    without asking Parks or Malone. Simmons handed Williams $1,400 and put the drugs
    in his pocket. Simmons asked Williams for his phone number, and Williams said to
    get it from Shaurette. Simmons called later that day to complain that the crack was
    short eight grams; Williams promised to make it up next time.
    -2-
    On October 10, Williams agreed to sell Simmons two ounces of crack for
    $2,400. He took the money and promised to return with the crack, but never did.
    Williams pled guilty to theft in state court.
    Williams was indicted for distributing, and aiding and abetting the distribution
    of, crack cocaine. He appeared before the court2 without a plea agreement, attempting
    to plead guilty. The case went to trial, and Williams was convicted of distributing,
    and aiding and abetting.
    II.
    Williams argues “the district court abused its discretion in refusing to accept
    Mr. Williams’ plea of guilty to the aiding and abetting,” claiming “a factual basis for
    the plea was established.” See FED. R. CRIM. P. 11(b)(3). Williams did not object
    at the plea hearing, and proceeded to trial – he notes the issue “may not have been
    preserved.” This court reviews for plain error. See United States v. Vonn, 
    535 U.S. 55
    , 58-59 (2002) (“a defendant who lets Rule 11 error pass without objection in the
    trial court must carry the burdens of Rule 52(b) . . . a silent defendant has the burden
    to satisfy the plain-error rule . . ..”). See also FED. R. CRIM. P. 52(b) (“A plain error
    that affects substantial rights may be considered even though it was not brought to the
    court’s attention.”).
    The plea hearing proceeded:
    THE COURT: Let’s turn our attention, then, to whether you are guilty.
    Tell me in your own words what you did on October 3rd, 2003, that
    makes you guilty of this offense.
    2
    The Honorable John A. Jarvey, then Chief Magistrate Judge, now United
    States District Judge for the Northern District of Iowa.
    -3-
    THE DEFENDANT: I received a phone call from Barb Sherrette
    (phonetic) asking about some marijuana, and I agreed to meet and send
    it to him, and I was there when the crack cocaine was sold also.
    THE COURT: And did you participate in that sale?
    THE DEFENDANT: Yeah, part of. Aiding and abet, yes.
    THE COURT: Okay, and in what way did you assist; did you get the
    people to come to that transaction?
    THE DEFENDANT: Yeah.
    The court inquired if the government was “satisfied with that as a factual basis for the
    plea.” The government requested that Williams testify “a little bit more in detail.”
    THE COURT: In that factual basis for the plea, Mr. Williams, it says
    that once you were – you and the police officer were at the apartment
    where the crack was sold, it says that you placed an ounce of crack on
    the arm of the couch near Officer Simmons, Darryl Simmons, and asked
    for $1,500. Then Officer Simmons stated the deal was supposed to be
    for $1,400, and you accepted that money; is that true as well?
    THE DEFENDANT: No.
    THE COURT: And what about that is not right?
    THE DEFENDANT: I didn’t place the stuff on – I didn’t place it on the
    couch, and I didn’t receive the money. I only received $200 out of the
    $1,400.
    THE COURT: And what did you get the $200 for?
    THE DEFENDANT: An ounce of reefer.
    -4-
    The district court observed, “I don’t think that supports a factual basis for the plea,”
    and (at the defense’s request) recessed for Williams to consult with counsel.
    Afterwards, his counsel agreed with the court that “we aren’t going to be able [to]
    achieve a factual basis.”
    At trial, the four elements for aiding and abetting were listed in the jury
    instructions:
    In order to have aided and abetted the commission of distributing
    “crack cocaine,” a person must:
    One, have known the crime of distribution of “crack cocaine” was
    being committed or going to be committed;
    Two, have knowingly acted in some way for the purpose of causing,
    encouraging or aiding the crime of distribution of “crack cocaine”;
    Three, have intended that the crime of distribution of “crack cocaine” be
    committed; and
    Four, the offense involved 5 grams or more but less than 50 grams of
    “crack cocaine.”
    A “factual basis for a plea of guilty is established when the court determines
    there is sufficient evidence at the time of the plea upon which the court may
    reasonably determine that the defendant likely committed the offense.” United States
    v. Brown, 
    331 F.3d 591
    , 594 (8th Cir. 2003). Williams responded “yeah” to the
    questions “did you participate in that sale” and “did you get the people to come to that
    transaction,” but specifically limited his admissions to marijuana. As to the crack, he
    asserted mere presence – “I was there when the crack cocaine was sold also” – which
    is insufficient to show he likely committed the offense. See, e.g., United States v.
    Shoffner, 
    71 F.3d 1429
    , 1433-34 (8th Cir. 1995) (“However, a defendant’s mere
    presence, coupled with the knowledge that someone else who is present intends to sell
    -5-
    drugs, is insufficient to establish membership in a conspiracy.”). Williams did not
    admit bringing Simmons and Shaurette to the apartment to buy crack. At the time of
    the plea, he did not admit to: assisting Parks in the strip-search of Simmons; handling
    the money Simmons paid for the crack; placing either the crack or the marijuana on
    the couch; or, handling the crack at all.
    A valid guilty plea “admits all of the elements of a criminal charge . . . [and]
    admits factual allegations in the indictment that form the basis for federal
    jurisdiction.” Mack v. United States, 
    853 F.2d 585
    , 586 (8th Cir. 1988). Williams
    admitted none of the elements of aiding and abetting the distribution of (much less
    distributing) crack cocaine. The district court did not commit plain error by refusing
    to enter a plea of guilty.
    III.
    At sentencing, the district court denied the motion for an acceptance-of-
    responsibility reduction, and imposed an obstruction-of-justice increase for perjury.
    Williams objected. This court reviews de novo the district court’s application of the
    sentencing guidelines, and its factual findings for clear error. United States v.
    Mathijssen, 
    406 F.3d 496
    , 498 (8th Cir. 2005).
    A sentencing enhancement for obstruction of justice is appropriate when the
    “defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
    administration of justice with respect to the investigation, prosecution, or sentencing
    of the instant conviction . . ..” USSG § 3C1.1. “In order to base an obstruction of
    justice enhancement on a defendant’s trial testimony, the district court must find by
    a preponderance of the evidence that he perjured himself.” United States v. Lewis,
    
    436 F.3d 939
    , 945 (8th Cir. 2006). “A district court applying the obstruction-of-
    justice enhancement for perjury must review the evidence and make an independent
    finding, by a preponderance of the evidence, that the defendant gave false testimony
    -6-
    concerning a material matter with the willful intent to provide false testimony, rather
    than as a result of confusion, mistake, or faulty memory.” United States v. Ziesman,
    
    409 F.3d 941
    , 956 (8th Cir. 2005) (citations omitted).
    Williams argues that his trial testimony, like his statements at the plea hearing,
    “was sufficient to convict him of the charged alternative of aiding and abetting.” He
    contends the disputed facts (“whether Mr. Williams directly provided the ‘crack
    cocaine’ to S/A Simmons and whether S/A Simmons handed the money directly to
    Mr. Williams”) are immaterial. He concludes that, even if he is untruthful on these
    points, his testimony is not perjurious.
    In its sentencing memorandum, the district court convincingly refutes this
    claim:
    During trial, Special Agent Simmons testified that Defendant
    placed one bag of crack cocaine and one bag of marijuana on the arm of
    the sofa where Special Agent Simmons was seated. When Defendant
    told Special Agent Simmons that the drugs cost $1,500, Special Agent
    Simmons told Defendant that he only had $1,400. Special Agent
    Simmons testified that Defendant stated that $1,400 was acceptable, so
    Special Agent Simmons handed Defendant $1,400. Special Agent
    Simmons’s testimony was corroborated by Maurice Malone. Malone
    testified that the sale of crack cocaine and marijuana was put together by
    Defendant and Lamarr Parks and that Defendant physically exchanged
    the marijuana and crack cocaine for cash from Agent Simmons.
    In contrast, Defendant testified that he did not bring a bag of crack
    cocaine to the living room or put it on the sofa near Special Agent
    Simmons. During trial, Defendant only admitted to arranging a sale of
    marijuana, bringing a bag of marijuana into the room and placing the
    marijuana near Special Agent Simmons. He denied any involvement
    with the crack cocaine and asserted that Parks was the person who
    initiated the crack cocaine transaction, brought the crack cocaine into the
    room and placed it on the sofa arm that was close to Special Agent
    Simmons.
    -7-
    Finding “the testimony of Special Agent Simmons and Malone credible and
    Defendant’s testimony not credible,” the district court imposed a two-level increase
    for obstruction of justice.
    “A sentencing enhancement for obstruction of justice may be based on the
    experienced trial judge’s finding that the defendant lied to the jury.” United States
    v. Denton, 
    434 F.3d 1104
    , 1114 (8th Cir. 2006). This is such a case. The district
    court did not clearly err in finding “by a preponderance of the evidence that Defendant
    perjured himself during trial by denying, under oath, any involvement in the
    distribution of crack cocaine.”
    Williams rests his entire acceptance-of-responsibility argument on his supposed
    “willingness to plead to the aiding and abetting alternative.” In United States v.
    Guerrero-Cortez, 
    110 F.3d 647
    , 654-56 (8th Cir. 1997), defendant Soler twice offered
    to plead guilty to responsibility for two kilograms of cocaine, but the government
    rejected his offer because he would not take responsibility for five kilograms. At
    sentencing, the district court found him responsible for two kilograms, but denied his
    acceptance-of-responsibility motion because “the timing of the acceptance was at the
    time of sentencing and not at the time of trial.” 
    Id. at 654
    . Because Soler
    “consistently and repeatedly admitted that he was involved with two kilograms of
    cocaine” and “was at all times ready to plead guilty to two kilograms,” this court held
    “it was clearly erroneous for the district court to conclude that Soler’s acceptance of
    responsibility came at sentencing, and not at the time of trial.” 
    Id. at 655-56
    .
    Unlike defendant Soler in Guerrero-Cortez, nothing Williams said, at the plea
    hearing or at trial, supports all the elements for aiding and abetting. In his closing
    argument, Williams concluded, “Before you return a verdict in this case, you have to
    know beyond any reasonable doubt that Josiah Williams on October 3, 2003,
    distributed crack cocaine or aided and abetted such distribution. I suggest to you that
    the evidence in this case demands one verdict, and that that verdict be not guilty.” He
    -8-
    “put[] the government to its burden of proof at trial by denying the essential factual
    elements of guilt, [was] convicted, and only [now] admits guilt and expresses
    remorse.” USSG § 3E1.1 comment. n.2. The district court correctly denied his
    acceptance-of-responsibility motion.
    IV.
    Williams next asserts that “the United States did not introduce sufficient
    evidence that the substance involved was ‘crack cocaine’ as opposed to‘cocaine
    base,’” resulting in an enhanced sentence under the Guidelines. At sentencing, a
    district court determines the drug type by a preponderance of the evidence. United
    States v. Thompson, 
    335 F.3d 782
    , 784 (8th Cir. 2003). This court reviews for clear
    error. 
    Id.
    This court uses the terms ‘cocaine base’ and ‘crack’ synonymously. See, e.g.,
    United States v. Vesey, 
    330 F.3d 1070
    , 1073 (8th Cir. 2003) (“Although ‘crack’
    technically is one form of ‘freebase cocaine,’ it is the predominant form and that
    which the statute [
    21 U.S.C. § 841
    ] intended to proscribe. The statute and our case
    law use the more generic term ‘cocaine base’ synonymously with the term ‘crack.’”)
    (citations omitted); United States v. Crawford, 
    83 F.3d 964
    , 966 (8th Cir. 1996)
    (“Congress intended the term cocaine base to refer to ‘crack,’ the smokable form of
    cocaine made by dissolving cocaine hydrochloride in water and baking soda and
    reducing it to a solid substance.”). Through the 100:1 crack-cocaine ratio, “it is clear
    from the legislative history that Congress intended to deter the rising use of crack
    cocaine.” United States v. Robinson, 
    462 F.3d 824
    , 825 (8th Cir. 2006). But crack
    is not the only type of cocaine base, and“forms of cocaine base other than crack
    cocaine have been imported into this country.” 
    Id.
     And “a number of circuits have
    held that the harsher statutory minimum sentences for cocaine base offenses are
    limited to those convicted of distributing crack, perhaps including other smokeable
    forms of cocaine.” 
    Id.
    -9-
    In the Robinson case, the drug certainly was crack. Robinson was indicted for
    distributing “cocaine base (‘crack’).” 
    Id. at 826
    . At his plea hearing, Robinson called
    the substance “crack.” 
    Id.
     “Thus, even if the harsher minimum sentence mandated
    by 
    21 U.S.C. § 841
    (b)(1)(A) for ‘cocaine base’ offenses is limited to a conviction for
    distributing the crack form of cocaine base (an issue we need not decide), there was
    no plain error in sentencing Robinson to that minimum sentence.” 
    Id.
    This case is similar. Williams referred to the drug as “crack cocaine”
    throughout the trial. The lab report described it as “off-white chunks” of “cocaine
    base.” The Sentencing Guidelines explain that crack is “the street name for a form of
    cocaine base . . . usually appearing in a lumpy, rocklike form.” USSG § 2D1.1(c)
    n.D. Agent Simmons, trained in drug identification, called it crack. The indictment
    under which Williams was convicted charged him with distributing “approximately
    18.99 grams of a mixture or substance containing a detectable amount of cocaine base
    (commonly called ‘crack cocaine’).” The district court’s finding, by a preponderance
    of the evidence at sentencing, that the substance is crack, is not clearly erroneous.
    V.
    At sentencing, Williams already was under a five-year state sentence for theft,
    and a consecutive five-year state sentence for possession of marijuana with intent to
    deliver. The $2,400 Williams stole from Agent Simmons was the basis for the theft
    conviction. Williams argues that his federal sentence should run concurrent with, not
    consecutive to, these sentences. This court reviews “the district court’s interpretation
    and application of § 5G1.3 de novo.” United States v. Hurley, 
    439 F.3d 955
    , 957 (8th
    Cir. 2006).
    The district court used these state convictions to determine William’s criminal
    history category. Williams contends the theft is relevant conduct, and instead should
    have been used to calculate his base offense level. Under the Guidelines, if “a term
    -10-
    of imprisonment resulted from another offense that is relevant conduct to the instant
    offense of conviction . . . and that was the basis for an increase in the offense level,”
    then “the sentence for the instant offense shall be imposed to run concurrently to the
    remainder of the undischarged term of imprisonment.” USSG § 5G1.3(b). This
    policy protects a defendant “against having the length of his sentence multiplied by
    duplicative consideration of the same criminal conduct.” Witte v. Untied States, 
    515 U.S. 389
    , 405 (1995).
    But “[c]onduct is not part of the offense of conviction when the conduct is a
    severable, distinct offense.” United States v. Blumberg, 
    961 F.2d 787
    , 792 (8th Cir.
    1992). The theft from Agent Simmons occurred one week after the original sale, in
    a separate transaction. The marijuana conviction derives from a search of Williams’s
    residence five months later. These are “severable, distinct offenses.” The district
    court was not required to run the federal sentence concurrent to the state sentences.
    Yet Williams maintains that a “largely concurrent sentence is appropriate in
    light of all of the relevant factors,” arguing that the district court should have
    exercised its discretion under Section 5G1.3(c). “Section 5G1.3 provides the court
    wide discretion to order a federal sentence to run consecutively to an undischarged
    state offense.” United States v. Mathis, 
    451 F.3d 939
    , 941 (8th Cir. 2006). On the
    facts here, including the distinct theft and marijuana convictions, the district court did
    not err by making the federal sentence consecutive.3
    VI.
    The judgment of the district court is affirmed.
    ______________________________
    3
    Williams also objects that the 100:1 crack-cocaine ratio “is not supported by
    any scientific basis, is not rational and is unduly harsh.” This issue is foreclosed by
    a case decided after his sentencing hearing. See United States v. Spears, 
    469 F.3d 1166
    , 1176 (8th Cir. 2006) (en banc).
    -11-