UNITED STATES of America, Plaintiff-Appellee, v. Arthur WILLIAMS, Jr., Defendant-Appellant.
No. 04-3180.
United States Court of Appeals, Tenth Circuit.
Dec. 19, 2005.
431 F.3d 1234
See United States v. Wimberly, 60 F.3d 281, 288 (7th Cir.1995) (holding that “the enhancement for victims under 12 years of age,
E
It is unclear from this record whether the district court would have imposed a different sentence if it had known that the application of the Sentencing Guidelines was not mandatory. While the district court expressed repugnance with Mr. Speelman‘s conduct, stating that he hoped never to “read about this kind of conduct by somebody against young girls again in my tenure on the bench,” the court also sentenced Mr. Speelman to the low end of the Sentencing Guidelines range. We conclude that the district court properly interpreted the Sentencing Guidelines. We remand, however, in accordance with Ameline.6
AFFIRMED IN PART; REMANDED IN PART.
James A. Brown, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Topeka, KS, for Plaintiff-Appellee.
Before LUCERO, SEYMOUR and HOLLOWAY, Circuit Judges.
SEYMOUR, Circuit Judge.
Arthur Williams, Jr., entered a plea of guilty to one count of distribution of a mixture containing a detectable quantity of cocaine in violation of
I
Mr. Williams was
On September 2, 2003, a confidential informant (CI) who was working with officers of the Shawnee County Sheriff‘s Department contacted the defendant by telephone. During their conversation, the defendant agreed to sell the (CI) six rocks of cocaine for $100.00. Thereafter, at the defendant‘s direction, the CI went to the defendant‘s residence in Topeka, Kansas, where the CI purchased six small rocks of cocaine for $100.00 as previously agreed. The rocks were later tested by the DEA and found to contain cocaine base.
Id.
In anticipation of Mr. Williams’ sentencing, the probation office prepared a presentence report (PSR). According to the PSR, the quantity of cocaine base distributed by Mr. Williams on September 2, 2003, was .97 grams. On the basis of information provided by a confidential informant (CI), the PSR determined for relevant conduct purposes that Mr. Williams had distributed 1.22 grams of cocaine base on September 8; 1.3 grams of cocaine base on September 19, and 1.06 grams of cocaine base on October 1, 2003. In addition, the police had discovered 1.64 grams of cocaine in Mr. Williams’ apartment and car when they executed a search warrant on October 14, 2003. A digital scale and a loaded 9mm Sig Sauer pistol were also found in Mr. Williams’ living room.
Mr. Williams objected to the recommended two-level increase for possession of the firearm. He admitted possession but argued that the enhancement did not apply because “the gun was not truly proximate to the drugs” as no drugs were located in the room in which the gun was found; the small amount of drugs recovered at his residence “belies the likelihood they were being held for sale“; and the evidence showed he possessed the gun solely for protection and in response to a robbery that occurred at his home on July 13, 2003. Rec., vol. I at Tab 27 (Objection to Presentence Report and Motion for Departure). The district court overruled Mr. Williams’ objection, finding both that the government had established “a temporal and spatial relationship between the weapon, the drug trafficking activity, and the defendant,” and that Mr. Williams did not satisfy his burden of showing it was “clearly improbable” the weapon was related to his drug offense. See id. at Tab 28 (Ruling on Objection to Presentence Report); id., vol. III at 13 (Sentencing Transcript). The district court adopted the recommendations of the presentence report and sentenced Mr. Williams at the bottom of the guideline range to 70 months imprisonment.
II
Mr. Williams first contends the court erred by increasing his offense level for possession of the firearm under
Section
Mr. Williams expressly conceded he possessed the firearm. See Aplt. Br. at 9 (“Mr. Williams admitted to police that he had possessed the firearm for a couple of months“); Rec., vol. I at Tab 23 (“as Mr. Williams told the police at the time, he had the gun because he had been robbed“); id., vol. III at 7 (“We don‘t dispute where the gun was found, we don‘t dispute the facts around the search of October 14th“); id. at 8 (“He had a gun in his apartment“). Moreover, because Mr. Williams did not dispute the 9mm pistol was “located in the living room on the couch with a pillow covering the pistol,” id. at 8, a “digital scale was located on the living room floor on the right hand side of a chair,” id., and “[f]our rocks of crack cocaine individually wrapped ... [were] found in plain view on the kitchen table,” id., the government demonstrated that the 9mm pistol “was found in the same location where drugs or drug paraphernalia are stored.” Zavalza-Rodriguez, 379 F.3d at 1186-87. This established possession and proximity, and the burden shifted to Mr. Williams to demonstrate it was “clearly improbable” that the firearm was connected to his drug trafficking offense.
Mr. Williams points out it is undisputed he was robbed and beaten by unknown individuals in his apartment in July 2003. He further contends he obtained the firearm as a result of that incident and, thus, possessed the pistol merely for protection. The government does not contest Mr. Williams’ claim that he possessed the gun for protection. Instead, it argues that because Mr. Williams pled guilty to cocaine trafficking and had previously been robbed of drugs, he carried the gun for protection of both his person and his drug dealing enterprise. Mr. Williams neither claims that he did not possess the gun during the commission of the crime to which he pled guilty nor that his need for protection was unrelated to his drug trafficking activities. We therefore agree with the district court that Mr. Williams’ assertions on their face are simply insufficient to meet the burden of “clear improbability,” and that he possessed the gun within the meaning of
III
For the first time on appeal, Mr. Williams relied on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to contend his sentence violates the Sixth Amendment, because a jury did not find, nor did he admit, facts that would support the two-level firearm possession enhancement.1 See United States v. Gonzalez-
Huerta, 403 F.3d 727, 731 (10th Cir.2005). After briefing was completed in this case, the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Court extended its holding in Blakely to the federal sentencing guidelines, holding that the Sixth Amendment requires “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict [to] be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at 755-56. To remedy the constitutional infirmity of the guidelines, Booker invalidated their mandatory nature, requiring the district court to consult them in an advisory fashion. Id. at 756-57 (severing and excising
Because Mr. Williams did not object to the firearm enhancement in the district court on the basis of the Sixth Amendment, we review only for plain error. See United States v. Yazzie, 407 F.3d 1139, 1144 (10th Cir.2005) (objecting on sufficiency of evidence grounds does not preserve claimed Booker errors); see also Trujillo-Terrazas, 405 F.3d at 818; United States v. Dazey, 403 F.3d 1147, 1173-74 (10th Cir.2005). To establish plain error, Mr. Williams must demonstrate that the district court (1) committed error, (2) that the error was plain, and (3) that the plain error affected his substantial rights. If all these conditions are met, a court reviewing the error may exercise discretion to correct it if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Dazey, 403 F.3d at 1174 (citations and quotation marks omitted).
Contrary to Mr. Williams’ argument, the district court‘s sentence does not run afoul of his Sixth Amendment rights. Although the court‘s finding that Mr. Williams’ possessed a firearm increased his offense level, that finding did not result in “a sentence exceeding the [statutory] maximum authorized by the facts established by [Mr. Williams‘] plea of guilty” to the underlying drug count. Booker, 125 S.Ct. at 756; see also Yazzie, 407 F.3d at 1144 (“Booker made clear that it is the actual sentence, not the sentencing range, that must not be increased based upon judge-found facts in order to violate the Sixth Amendment.“). The guideline range incorporating the
Nevertheless, the district court committed non-constitutional error in treating the guidelines as mandatory, rather than advisory. See Yazzie, 407 F.3d at 1146. Mr. Williams has therefore established the first two prongs of the plain error test. But he has not met his burden of establishing the test‘s remaining requirements. We need not decide whether Mr. Williams has established the third prong because even if he has, he has not met the “demanding” burden of establishing that the district court‘s non-constitutional error “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 736; see also Yazzie, 407 F.3d at 1146. “A party that fails to raise an argument in the district court must show that allowing a non-constitutional error to stand would be particularly egregious and would constitute a miscarriage of justice.” Dazey, 403 F.3d at 1178 (citations and internal quotation marks omitted); see also Yazzie, 407 F.3d at 1146 (“we will not notice a non-constitutional error, such as the one in the case before us, unless it is both particularly egregious and our failure to notice the error would result in a miscarriage of justice” (citations and internal quotation marks omitted)). We have recognized that in most cases involving non-constitutional Booker error the defendant will be unable to satisfy the final prong. See Trujillo-Terrazas, 405 F.3d at 820-21 (acknowledging difficulty in establishing final prong in cases involving non-constitutional Booker error but finding that defendant had satisfied it). Mr. Williams has not met this high standard.
Mr. Williams received a sentence within the national norm as established by the guidelines, and there is no evidence supporting a lower sentence. See Gonzalez-Huerta, 403 F.3d at 738-39 (considering in final prong analysis whether defendant received a sentence within guidelines/national norm and whether record supported a lower sentence). Although the district court sentenced Mr. Williams at the bottom of the guidelines range, there is nothing in the record to indicate the court was unhappy with the sentence or that it would have been inclined to impose a lower sentence had it realized it had the discretion to do so. United States v. Sierra-Castillo, 405 F.3d 932, 942 (10th Cir.2005) (comments of sympathy towards a defendant‘s circumstances do not in themselves demonstrate that “the sentence implicates the kind of fundamental fairness issues necessary to satisfy the fourth plain-error prong“).
Even if a defendant can demonstrate that the district court felt particular sympathy for him, and might impose a lesser sentence on remand, failing to correct [non-constitutional Booker error] would not impugn the fairness, integrity, and public reputation of judicial proceedings. Indeed, a remand might do quite the opposite because another defendant convicted of an identical crime under identical circumstances could receive a different sentence from a less sympathetic judge.
Trujillo-Terrazas, 405 F.3d at 821. Because objective consideration of the factors listed in
SEYMOUR
Circuit Judge