United States v. Williams , 348 F. App'x 17 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 7, 2009
No. 08-31157
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROGER WILLIAMS,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:08-CR-132-1
Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Roger Williams pleaded guilty to one count of possessing with the intent
to distribute at least 50 grams of crack and one count of possessing a firearm in
furtherance of a drug-trafficking crime. Applying the recidivist enhancement,
the district court determined that Williams was subject to a 20-year mandatory
minimum sentence on the drug count. 21 U.S.C. § 841(b)(1). The court
sentenced Williams to consecutive prison terms of 240 months for the drug
violation and 60 months on the firearm count. Williams argues that the court
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-31157
should not have imposed the enhanced sentence for the drug offense because, he
contends, the Government failed to file, before the entry of Williams’s guilty
plea, an information specifying the prior conviction it relied on to enhance the
sentence. See 21 U.S.C. § 851(a).
Under the terms of the plea agreement, Williams waived the right to
appeal his sentence unless it was higher than the statutory maximum. Before
Williams entered his guilty plea, however, the district court incorrectly advised
that he could appeal the sentence if it was “illegal, above the maximum guideline
range, or above the maximum statutory range.”
The Government seeks to enforce the appeal waiver and argues that
Williams’s appeal should be dismissed. In light of the district court’s failure to
describe the appeal waiver accurately, we assume without deciding that
Williams did not knowingly waive the right to appeal his sentence as Williams’s
appeal is more easily resolved on its merits.
A defendant, through his actions, can waive compliance with § 851’s
requirements, see United States v. Dodson, 288 F.3d 153, 160-61 (5th Cir. 2002),
and that is what Williams has done here. Throughout the proceedings in the
district court, Williams repeatedly and affirmatively acknowledged that he
would receive an enhanced sentence. In the plea agreement, Williams
acknowledged that he was subject to a mandatory minimum sentence of 20 years
because he had a prior felony drug conviction, and the agreement detailed the
prior conviction that justified the enhancement. Furthermore, during the Rule
11 colloquy, the district court explained the 20-year mandatory minimum
sentence, and before pleading guilty, Williams told the court that he understood
the minimum penalty. Both in the plea agreement and during the Rule 11
colloquy, Williams necessarily agreed that he would receive a sentencing
enhancement based on his prior conviction and, thus, waived any argument that
the Government failed to comply with the § 851 requirements. See Dodson, 288
F.3d at 160-61. Even if he did not waive compliance, he forfeited his right to
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No. 08-31157
raise the argument on appeal by failing to raise it in the district court, and, for
the same reasons, we decline to exercise our discretion to address the forfeited
error as Williams has not sought to withdraw his guilty plea and received the
sentence that he expected. See id. at 162.
The judgment of the district court is AFFIRMED.
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