UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4869
LLOYD ANTHONIE WILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-99-144)
Argued: October 29, 2002
Decided: January 29, 2003
Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
ARGUED: Stephen Paul Lindsay, CLONINGER, LINDSAY, HEN-
SLEY & SEARSON, P.L.L.C., Asheville, North Carolina, for Appel-
lant. Thomas Richard Ascik, Assistant United States Attorney,
Asheville, North Carolina, for Appellee. ON BRIEF: Robert J. Con-
rad, Jr., United States Attorney, Asheville, North Carolina, for Appel-
lee.
2 UNITED STATES v. WILLIAMS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Lloyd Anthonie Williams appeals from the sentence imposed after
he was convicted of unlawful possession of a firearm. See 18
U.S.C.A. § 922(g)(1) (West 2000). We affirm in part, vacate in part,
and remand for resentencing.
I.
In December 1997, an officer making a routine traffic stop of a car
driven by Williams saw a small silver pistol on the floor of the car
on the passenger side. Williams, a convicted felon, went to trial on a
single count of unlawful possession of a firearm; two drug-trafficking
counts were dismissed by the government. Prior to trial, the govern-
ment filed an information stating that Williams had three prior con-
victions for violent felonies or serious drug offenses and that the
government would seek an enhanced sentence under the Armed
Career Criminals Act, 18 U.S.C.A. § 924(e) (West 2000). Williams
was convicted, and the district court imposed a life sentence under the
career offender provisions of the United States Sentencing Guide-
lines.
Williams appealed his sentence and conviction to this court. We
affirmed his conviction but vacated the sentence because Williams
was not eligible for sentencing as a career offender, leaving for the
district court to determine on remand whether Williams could be sen-
tenced under the Armed Career Criminals Act (the "ACCA"). See
United States v. Williams, No. 99-4583 (4th Cir. June 14, 2001).
On remand, the district court concluded that Williams qualified for
sentencing as an armed career criminal. When calculating Williams’
offense level as an armed career criminal, the district court concluded
that Williams had used or possessed the firearm in connection with
UNITED STATES v. WILLIAMS 3
a controlled substance offense, a conclusion that led to a base offense
level of 34. See U.S.S.G. § 4B1.4(b)(3)(A) (1998). The district court
sentenced Williams to 300 months imprisonment. This appeal fol-
lowed.
II.
A.
Because Williams had previously been convicted of crimes carry-
ing sentences of more than one year, his possession of a firearm vio-
lated 18 U.S.C.A. § 922(g)(1) (West 2000). The ACCA imposes a
mandatory minimum sentence of fifteen years for section 922(g) vio-
lations if the defendant has three previous convictions "for a violent
felony or a serious drug offense." 18 U.S.C.A. § 924(e)(1). On appeal,
Williams contends that he is not eligible for sentencing under the
ACCA because the two prior drug-related convictions upon which the
district court relied do not qualify as serious drug offenses under the
ACCA.1
The ACCA defines a "serious drug offense" as "an offense under
State law, involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance . . . for
which a maximum term of imprisonment of ten years or more is pre-
scribed by law." 18 U.S.C.A. § 924(e)(2)(A)(ii). Williams’ drug con-
victions arose from two separate sales of less than one gram of
cocaine in North Carolina. One sale took place in October 1990, the
other in August 1991. When Williams was convicted in state court,
the crimes carried maximum sentences of ten years. See N.C. Gen.
Stat. § 90-95(b)(1) (1991); N.C. Gen. Stat. § 14-1.1(a)(8) (1991). But
North Carolina substantially revised its sentencing laws in 1994, and
the drug crimes for which Williams was convicted are no longer sub-
ject to a 10-year maximum sentence. See N.C. Gen. Stat. § 90-
95(b)(1) (2001); N.C. Gen. Stat. §§ 15A-1340.17(c), (d) (2001). If the
maximum sentence for a predicate conviction under the ACCA is
determined as of the time of the underlying conviction, then the dis-
trict court properly treated Williams as an armed career criminal. But
1
Williams does not dispute that a prior assault conviction qualifies as
a violent felony under the ACCA.
4 UNITED STATES v. WILLIAMS
if the maximum sentence is instead determined as of the time of sen-
tencing on the federal 922(g) charge, then Williams should not have
been treated as an armed career criminal.
On appeal, Williams contends that the language of the statute itself
makes it clear that the relevant time frame is that of the federal sen-
tencing. As noted above, the ACCA defines a "serious drug offense"
as "an offense under State law . . . for which a maximum term of
imprisonment of ten years or more is prescribed by law." 18 U.S.C.A.
§ 924(e)(2)(A)(ii) (emphasis added). Williams contends that by using
the present tense "is," the statute requires that the predicate convic-
tions be subject to a ten-year sentence at the time of the federal sen-
tencing. If Congress had been concerned with the sentence the
defendant faced at the time he committed the predicate crime, then the
statute would have used the past tense—for example, defining "seri-
ous drug offense" as "an offense under State law . . . for which a max-
imum term of imprisonment of ten years or more was prescribed by
law," or as "an offense under State law for which the defendant faced
a maximum sentence of ten years or more." Williams also contends
that if the language of the ACCA does not compel consideration of
the maximum sentence that could be imposed at the time of the fed-
eral sentencing, then the statute is ambiguous, and the "rule of lenity"
requires that the ambiguity be resolved in his favor. See, e.g., Hughey
v. United States, 495 U.S. 411, 422 (1990) (explaining that lenity
principles "demand resolution of ambiguities in criminal statutes in
favor of the defendant").
The only circuit court to directly address this issue agrees with
Williams. See United States v. Morton, 17 F.3d 911, 915 (6th Cir.
1994). We need not, however, decide whether the interpretation of the
ACCA urged by Williams and adopted by the Morton court is correct.
Even assuming that the ACCA requires predicate drug-related convic-
tions to be subject to a ten-year sentence as of the time of the federal
sentencing, we still conclude that Williams was properly sentenced as
an armed career criminal.
When North Carolina revised its sentencing scheme in 1994, it spe-
cifically provided that the revised sentences do not apply to crimes
committed before the effective date of the revisions. See N.C. Gen.
Stat. § 15A-1340.10 (2001); State v. Branch, 518 S.E.2d 213, 215
UNITED STATES v. WILLIAMS 5
(N.C. Ct. App. 1999) (explaining that the defendant’s "offenses that
were committed prior to 1 October 1994, the effective date of the
Structured Sentencing Act, fall under the sentencing guidelines of the
Fair Sentencing Act as a matter of law"). In effect, then, North Caro-
lina has two sentencing schemes—one governing offenses committed
before October 1994 and another governing offenses committed after
October 1994. Because of these parallel sentencing schemes, if Wil-
liams were to be tried and convicted today for the crimes he commit-
ted in 1990 and 1991,2 he would be subject to the higher sentences
imposed by the pre-1994 sentencing statutes. Thus, the drug crimes
that Williams committed were subject to a maximum sentence of at
least ten years at the time he committed the offenses and are also
presently subject to a maximum sentence of at least ten years. The
requirements of the ACCA, however construed, are therefore satis-
fied, and the district court properly sentenced Williams as an armed
career criminal.
B.
Williams also argues that the two North Carolina drug convictions,
which were committed on different dates, should be treated as one
conviction for purposes of the ACCA because the offenses were con-
solidated for sentencing. As Williams recognizes, this argument has
previously been rejected by this court. See United States v. Samuels,
970 F.2d 1312, 1315 (4th Cir. 1992) ("Nothing in § 924(e) or the
Guidelines suggests that offenses must be tried or sentenced sepa-
rately in order to be counted as separate predicate offenses. The only
requirement is that the predicate offenses be ‘committed on occasions
different from one another.’" (internal citations omitted)). This issue,
therefore, is without merit. See Mentavlos v. Anderson, 249 F.3d 301,
312 n.4 (4th Cir.) (explaining that "a panel of this court cannot over-
rule, explicitly or implicitly, the precedent set by a prior panel of this
court"), cert. denied, 122 S. Ct. 349 (2001).
2
North Carolina has no statute of limitations for felony offenses. See
State v. Johnson, 167 S.E.2d 274, 279 (N.C. 1969).
6 UNITED STATES v. WILLIAMS
III.
Unless other provisions of the Sentencing Guidelines impose a
higher base offense level, the base offense level for an armed career
criminal is 33. See U.S.S.G. § 4B1.4(b)(3)(B). However, if the gun
giving rise to the section 922(g) charge was used or possessed "in
connection with a crime of violence or controlled substance offense,"
the offense level is increased to 34. U.S.S.G. § 4B1.4(b)(3)(A). The
district court adopted the recommendation in the presentence report
("PSR") that Williams be assigned a base offense level of 34. On
appeal, Williams contends that there is insufficient evidence to sup-
port the offense-level enhancement. We agree.
The base offense level of 34 is dependent on the defendant’s use
or possession of "the firearm" in connection with a controlled sub-
stance offense. U.S.S.G. § 4B1.4(b)(3)(A) (emphasis added). Because
the guideline focuses on "the firearm," rather than "a firearm," see
U.S.S.G. § 2K2.1(c)(1), or "any firearm," see U.S.S.G. § 2K2.1(b)(5),
we think it clear that the firearm giving rise to the defendant’s section
922(g) charge and the firearm used in connection with the controlled
substance offense must be one and the same. See United States v. Sut-
ton, 302 F.3d 1226, 1228 (11th Cir. 2002) (per curiam) (concluding
that "§ 4B1.4(b)(3)(A) is applicable only if the firearms . . . for which
the felon was convicted were used in connection with a drug
offense").
The evidence presented at the first sentencing hearing established
that Williams used or possessed a firearm in connection with various
drug transactions. One witness who dealt drugs with Williams said in
a statement to the FBI that, during the drug transactions, Williams
was always in possession of a black and chrome .380 handgun.
Another witness told the FBI agent that on one occasion she saw Wil-
liams with a large quantity of cocaine and that Williams had with him
then a long-barreled silver gun with a brown handle. The gun in Wil-
liams’ car when he was stopped in December 1997, however, was
described at trial as a small silver gun. Thus, the descriptions of the
gun (or guns) connected with the drug transactions do not match that
of the gun which forms the basis for Williams’ section 922(g) convic-
tion. While the evidence established that Williams used a firearm in
UNITED STATES v. WILLIAMS 7
connection with a drug offense, it did not establish that Williams used
the firearm in connection with a drug offense.
This gap in the government’s evidence cannot be filled by the find-
ings set forth in the PSR. See, e.g., United States v. Morgan, 942 F.2d
243, 245 (4th Cir. 1991) (explaining that the district court may satisfy
its duty to make specific factual findings regarding disputed sentenc-
ing issues by "expressly adopt[ing] the recommended findings con-
tained in the presentence report"). With regard to Williams’ use of a
firearm in connection with a controlled substance offense, the PSR set
forth the same evidence discussed above, evidence which established
only that Williams possessed a firearm, not the firearm. And while the
PSR recommended that Williams’ sentence be enhanced because of
his possession of a weapon in connection with drug offenses, the
enhancement recommended in the PSR was the 4-level enhancement
found in U.S.S.G. § 2K2.1(b)(5), which applies if the defendant "used
or possessed any firearm . . . in connection with another felony
offense." That enhancement, however, was largely meaningless,
because Williams’ offense level under section 2K2.1 was lower than
the minimum offense level established by section 4B1.4. As to the
offense level that should be assigned under section 4B1.4, the supple-
mental PSR (revised after the case was remanded for resentencing)
simply stated, without mentioning the requirements of section
4B1.4(b)(3)(A), that Williams should be assigned an offense level of
34.
Because there is no factual finding in the PSR that Williams pos-
sessed the firearm underlying his section 922(g) conviction in connec-
tion with a controlled substance offense, the district court’s adoption
of the PSR’s findings cannot support the enhancement of Williams’
offense level. And because the government failed to present other evi-
dence that would support the enhancement, the district court erred by
assigning to Williams a base offense level of 34. See United States v.
Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir. 1989) (explaining that
the government bears the burden of proving by a preponderance of
the evidence the applicability of a sentencing enhancement). Instead,
Williams’ offense level should be 33, see U.S.S.G. § 4B1.4(b)(3)(B),
which, with his category VI criminal history,3 yields a sentencing
3
The determination that Williams used or possessed the firearm in con-
nection with a controlled substance offense also resulted in Williams
8 UNITED STATES v. WILLIAMS
range of 235-293 months. On remand, the district court shall impose
a sentence within this range.
IV.
To summarize, we conclude that the district court properly sen-
tenced Williams as an armed career criminal, but that the court erred
when it concluded that Williams used the firearm that was the basis
for his 18 U.S.C.A. § 922(g) conviction in connection with a con-
trolled substance offense. We therefore affirm in part, vacate in part,
and remand for resentencing in accordance with this opinion.4
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
being assigned a category VI criminal history. See U.S.S.G.
§ 4B1.4(c)(2). Given our conclusion that the government failed to estab-
lish that Williams used "the" firearm in connection with a drug offense,
reliance on the criminal history category set by section 4B1.4(c) would
be error. But without regard to section 4B1.4(c), Williams’ criminal his-
tory points (seventeen, as determined in the presentence report) are more
than enough to place him in category VI. Although Williams conclu-
sorily argues that the district court erred by placing him in category VI,
Williams does not challenge the determination in the presentence report
that his extensive criminal record results in the assignment of seventeen
criminal history points.
4
We have considered the issues raised by Williams in his pro se briefs
and find them to be without merit.