Filed: February 23, 2006
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4422
(CR-98-144)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LLOYD ANTHONIE WILLIAMS,
Defendant - Appellant.
O R D E R
The court grants appellant’s motion to correct the opinion and
amends its opinion filed January 20, 2006, as follows:
On page 4, lines 9 and 11 -- the word “crack” is deleted.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4422
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
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-98-144)
Argued: October 28, 2005 Decided: January 20, 2006
Before WILKINS, Chief Judge, and MICHAEL and TRAXLER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Aaron Edmund Michel, Charlotte, North Carolina, for
Appellant. Thomas Richard Ascik, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee. ON BRIEF: Robert J. Conrad, Jr., United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This is Lloyd Anthonie Williams’ third appeal after his
conviction for unlawful possession of a firearm. See 18 U.S.C.A.
§ 922(g)(1). Williams contends that the district court erred by
sentencing him in strict accordance with the instructions we set
forth in the second appeal. Williams argues that the district
court should have considered new evidence involving his prior state
convictions, evidence that could have resulted in a substantially
lower sentence if considered by the district court. For the
reasons set forth below, we affirm.
I.
A law enforcement officer discovered a gun during a routine
traffic stop of a car driven by Williams. Because Williams had
prior North Carolina state court felony convictions (one assault
conviction and two drug-related convictions), he was charged with
unlawful possession of a firearm. Prior to trial, the government
filed an information stating that because Williams had three prior
convictions for violent felonies or serious drug offenses, it would
seek an enhanced sentence under the Armed Career Criminals Act.
See 18 U.S.C.A. § 924(e) (the “ACCA”). Williams was convicted
after a jury trial. Applying the Career Offender provisions of the
Sentencing Guidelines, the district court sentenced Williams to
life imprisonment.
2
Williams appealed. Although we affirmed his conviction, we
vacated his sentence, concluding that the § 922(g) charge of which
Williams had been convicted did not trigger the application of the
Career Offender guidelines. We remanded for re-sentencing, leaving
for the district court the question of whether Williams could be
sentenced under the ACCA. See United States v. Williams, No. 99-
4583, 16 Fed. Appx. 90 (4th Cir. June 14, 2001) (unpublished).
The ACCA provides for a mandatory minimum sentence of fifteen
years for a defendant who violates § 922(g) 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 remand, the district court
concluded that Williams’ prior North Carolina convictions satisfied
the requirements of the ACCA, and the court imposed a sentence of
300 months. Williams appealed again, and we affirmed the district
court’s conclusion that Williams’ state court convictions subjected
him to sentencing under the ACCA. We concluded, however, that the
district court erred when determining Williams’ base offense level.
We vacated Williams’ sentence and remanded for re-sentencing,
giving the district court explicit instructions on how to handle
the re-sentencing. See United States v. Williams, No. 01-4869, 57
Fed. Appx. 553, 558 (4th Cir. Jan. 29, 2003) (unpublished)
(“Williams’ offense level should be 33, which, with his category VI
criminal history, yields a sentencing range of 235-293 months. On
3
remand, the district court shall impose a sentence within this
range.” (citation and footnote omitted)).
Less than two weeks before Williams was to be re-sentenced,
counsel for Williams filed a motion for appropriate relief in North
Carolina state court seeking a modification of his prior drug
convictions. The state did not object to the motion, and an order
was entered the same day the motion was filed. The order
retroactively modified the prior drug convictions, converting what
had been convictions for the sale of cocaine that carried a maximum
sentence of ten years to convictions for possession of cocaine that
carried a maximum sentence of five years. As modified, Williams’
drug convictions no longer qualified as predicate convictions under
the ACCA, see 18 U.S.C.A. § 924(e)(2)(A)(ii), leaving Williams with
only one conviction (the assault conviction) that could be counted
under the ACCA. Thus, at the re-sentencing hearing, Williams
argued that he should not be sentenced as an armed career criminal
and that he was instead subject to the ten-year maximum sentence
set forth in 18 U.S.C.A. § 924(a)(2).1
The district court rejected Williams’ argument. The district
court concluded that under the mandate rule, it was obligated by
our prior opinion to impose a sentence of between 235-293 months
1
Absent the designation of Williams as an armed career
criminal, the relevant Guidelines sentencing range would be either
70-87 months or 84-105 months, depending upon the application of a
particular offense level enhancement.
4
and that it was not free to consider Williams’ argument with regard
to the newly modified state-court convictions. The district court
sentenced Williams to 293 months imprisonment, and this appeal
followed.
II.
“Few legal precepts are as firmly established as the doctrine
that the mandate of a higher court is controlling as to matters
within its compass.” United States v. Bell, 5 F.3d 64, 66 (4th
Cir. 1993) (internal quotation marks omitted).
Because this mandate rule is . . . a specific application
of the law of the case doctrine, in the absence of
exceptional circumstances, it compels compliance on
remand with the dictates of a superior court and
forecloses relitigation of issues expressly or impliedly
decided by the appellate court.
Id. (internal quotation marks omitted).
In our opinion in Williams’ second appeal, we concluded that
Williams’ state drug convictions qualified as predicate convictions
under the ACCA and we affirmed the district court’s decision to
sentence Williams as an armed career criminal. We also
specifically instructed the district court to impose a sentence
between 235 and 293 months. Given the issues that were resolved in
the second appeal and the specificity of our instructions to the
district court, Williams’ claim that he should not be sentenced as
an armed career criminal was inconsistent with our mandate.
5
The mandate rule, however, is not without exceptions. Under
certain extraordinary circumstances, a trial court has discretion
to reopen matters otherwise laid to rest. See id. (“[W]hen this
court remands for further proceedings, a district court must,
except in rare circumstances, implement both the letter and spirit
of the mandate, taking into account our opinion and the
circumstances it embraces.”) (internal quotation marks and
alteration omitted); United States v. Bell, 988 F.2d 247, 251 (1st
Cir. 1993) (noting that the mandate rule is not a jurisdictional
rule and “may tolerate a modicum of residual flexibility in
exceptional circumstances” (internal quotation marks omitted)).
Our cases have spelled out the narrow circumstances under which an
exception to the mandate rule may be warranted: (1) if “controlling
legal authority has changed dramatically”; (2) if “significant new
evidence, not earlier obtainable in the exercise of due diligence,
has come to light”; or (3) if “a blatant error in the prior
decision will, if uncorrected, result in a serious injustice.”
Bell, 5 F.3d at 67 (internal quotation marks and alterations
omitted); see also United States v. Aramony, 166 F.3d 655, 662 (4th
Cir. 1999).
Williams contends that the modification of his state drug
convictions qualifies as newly discovered evidence that should have
been considered by the district court. Preliminarily, we agree
with Williams that the retroactive modification of his state
6
convictions must be considered new “evidence.” While this
defendant-initiated and defendant-obtained modification is far from
the usual kind of “evidence” presented in these situations, it is
a fact that has newly come into existence, which is sufficient to
make it new “evidence” for purposes of our inquiry. Cf. Johnson v.
United States, 125 S. Ct. 1571, 1577 (2005) (concluding that the
vacatur of prior state convictions obtained by the defendant was a
new “fact” for purposes of determining whether the defendant’s §
2255 petition was timely filed); United States v. Gadsen, 332 F.3d
224, 227 (4th Cir. 2003) (“[T]he relevant ‘fact’ with respect to
the operation of Gadsen’s § 2255 claim today is the fact that
Gadsen’s prior state conviction has been conclusively
invalidated.”).
In addition to requiring new evidence, however, the exception
to the mandate rule requires that the defendant exercise due
diligence in obtaining that new evidence. See Bell, 5 F.3d at 67.
To determine whether Williams exercised due diligence in obtaining
the modification of his state court sentences, we must first
determine the relevant time frame--that is, we must determine when
the due diligence clock begins ticking. We have found no case
discussing when the due diligence period should begin in the
7
context of the mandate rule. We believe, however, that the Supreme
Court’s decision in Johnson provides guidance on this question.2
In Johnson, the defendant was convicted in federal court of
various drug charges. Because of his prior state convictions, the
defendant received an enhanced sentence under the career offender
provisions of the Sentencing Guidelines. His conviction and
sentence as a career offender were affirmed on appeal. More than
three years after his federal conviction, the defendant filed a
petition in state court challenging various convictions, including
one upon which his federal designation as a career offender
depended. The state court concluded that the defendant had not
validly waived his right to counsel and vacated the convictions.
A few months later, the defendant filed a § 2255 petition
challenging his career offender designation. He alleged that the
vacatur of his state convictions was a new “fact” and that his §
2255 petition was timely because it was filed within one year of
his “discovery” of this new “fact.”3 The district court and the
court of appeals rejected the § 2255 petition as untimely.
2
We held this case in abeyance pending the Supreme Court’s
decision in Johnson.
3
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
establishes a one-year limitations period for the filing of a §
2255 petition, a period that runs from, inter alia, “the date on
which the facts supporting the claim . . . could have been
discovered through the exercise of due diligence.” 28 U.S.C.A. §
2255, ¶ 6(4) (West 2005).
8
The Supreme Court held that the vacatur of the defendant’s
state convictions was a new fact within the meaning of § 2255. See
Johnson, 125 S. Ct. at 1577; see also Custis v. United States, 511
U.S. 485, 497 (1994) (explaining that a federal defendant who
successfully challenges a state conviction may “apply for reopening
of any federal sentence enhanced by the state sentence[]”). The
Court also held that the defendant’s receipt of the order vacating
the state convictions was the event that triggered the running of
AEDPA’s one-year statute of limitations. See Johnson, 125 S. Ct.
at 1580. Nonetheless, the Court concluded that the defendant had
not acted with due diligence in seeking the order, as required by
§ 2255. See id. at 1582.
The Court determined that it was the possibility of an
enhanced federal sentence that would cause a defendant to recognize
the need to challenge the validity of his prior state convictions.
As to which point in the federal proceedings would trigger the due
diligence period, the Court identified three possible dates-–the
date the federal indictment was disclosed, the date of judgment, or
the date of finality after direct appeal. See id. at 1581. Using
the date of the federal indictment as the due diligence trigger
“would require the quickest response and serve finality best, but
it would produce some collateral litigation that federal acquittals
would prove to be needless.” Id. Using the “date of finality
after direct appeal” would minimize collateral litigation, but at
9
the expense of “finality . . . com[ing] late.” Id. The Court
thus settled on the date that the federal judgment was entered
against the defendant:
This shapes up as a case for choosing the bowl of
porridge between the one too hot and the one too cold,
and settling on the date of judgment as the moment to
activate due diligence seems best to reflect the
statutory text and its underlying concerns. After the
entry of judgment, the subject of the § 2255 claim has
come into being, the significance of inaction is clear,
and very little litigation would be wasted, since most
challenged federal convictions are in fact sustained.
Id. Because the defendant waited more than three years after the
federal judgment was entered to challenge his state convictions,
the Court held that the defendant had not acted with due diligence.
The Court thus affirmed the dismissal of the defendant’s § 2255
petition as untimely. See id. at 1582.
The factual contexts of Johnson and this case are identical in
the most important respects. In both cases, the defendants managed
to alter their predicate state convictions in a way that brought
into question the propriety of their sentencing under the ACCA, and
Williams, like the defendant in Johnson, seeks to overturn his ACCA
designation because of this “new evidence.” There is, of course,
an important difference between Johnson and the case at bar.
Johnson arose in the habeas context; the federal conviction in
Johnson had become final before the defendant began the process of
setting aside his state convictions. In this case, by contrast,
final judgment has yet to be entered. We do not believe, however,
10
that this difference in the procedural posture of the cases makes
Johnson inapplicable.
The interest of preserving the finality of criminal
convictions is of paramount importance in the habeas context. See,
e.g., Woodford v. Garceau, 538 U.S. 202, 206 (2003) (“Congress
enacted AEDPA to reduce delays in the execution of state and
federal criminal sentences . . . and to further the principles of
comity, finality, and federalism.” (internal quotation marks
omitted)). A similar interest drives the law-of-the-case and the
mandate rules–-the need for litigation to finally come to an end.
See Klay v. All Defendants, 389 F.3d 1191, 1199 (11th Cir. 2004)
(“While not an inexorable command, the law of the case doctrine
provides stability and finality in litigation, which are crucial
cornerstone values for developing a just and efficient judicial
process.”); United States v. O’Dell, 320 F.3d 674, 679 (6th Cir.
2003) (“The mandate rule serves the interest in finality.
Repetitive hearings, followed by additional appeals, waste judicial
resources and place additional burdens on parole officers and
personnel and on hardworking district and appellate judges.”)
(internal quotation marks omitted); Bell, 988 F.2d at 252 (“The law
of the case doctrine dictates that all litigation must sometime
come to an end.”). In our view, the need to bring litigation to an
end is of similar importance to the interest in preserving the
finality of judgments that guided the Supreme Court’s decision in
11
Johnson. Cf. Calderon v. Thompson, 523 U.S. 538, 555 (1998)
(“Finality is essential to both the retributive and the deterrent
functions of criminal law. Neither innocence nor just punishment
can be vindicated until the final judgment is known. Without
finality, the criminal law is deprived of much of its deterrent
effect.” (citation and internal quotation marks omitted)). Given
these similar interests and the factual similarities between this
case and Johnson, we believe that the Johnson Court’s analysis of
when the due diligence clock should begin to run under § 2255
should apply to the question of when the due diligence clock should
begin to run for purposes of determining whether this case
justifies making an exception to the mandate rule.
As in Johnson, using the date of indictment as the trigger for
the due diligence requirement would encourage collateral litigation
that would prove unnecessary in cases where the defendant was
acquitted of the federal charges. Using the date of final judgment
as the trigger for the due diligence requirement would present the
same problem that gave the Supreme Court pause in Johnson--
litigation in which finality comes much too late. Williams was
convicted in December 1998 and sentenced in August 1999. We issued
our opinion in his first appeal in June 2001 and our opinion in his
second appeal in January 2003. If the due diligence period does
not beginning running until final judgment, then the period would
not have begun to run even now, seven years after Williams was
12
convicted. Moreover, using the date of final judgment as the
beginning of the due diligence period would subject criminal
defendants to wildly varying time periods in which to challenge
their state convictions. In cases like this one, where there has
been appeal after appeal, the defendant would have many years
before the due diligence clock would begin ticking. In the more
typical case, however, where there is only one appeal, the due
diligence period would begin much sooner.
After considering the interest in ensuring that all litigation
finally comes to an end and balancing that interest against a
defendant’s right to challenge his predicate convictions in state
court, we see no reason to depart from the Supreme Court’s
resolution of the due diligence issue in Johnson. Accordingly, we
conclude that for purposes of the newly-discovered evidence
exception to the mandate rule, the due diligence period begins to
run when the judgment of conviction is entered by the district
court, not when that judgment becomes final at the conclusion of
appellate review.4 Cf. Fed. R. Crim. P. 33(b)(1) (stating that
“[a]ny motion for a new trial grounded on newly discovered evidence
4
Our determination of when the due diligence clock begins to
run is limited to the circumstances of this case, where a federal
defendant seeks to overturn an enhanced sentence after challenging
the predicate state convictions upon which the enhanced sentence
was based. When the due diligence period begins in other cases
involving the new-evidence exception to the mandate rule is a
question to be answered when presented.
13
must be filed within 3 years after the verdict or finding of
guilty”).5
Now that we have determined that the time for exercising due
diligence began when Williams was sentenced on the federal charge,
the question is whether Williams in fact exercised due diligence.
We are constrained to answer that question in the negative.
Williams was sentenced in August 1999, but it was not until
April 2003 that he filed his state-court motion seeking
modification of his prior convictions. Williams has known since he
was indicted that the government would seek to rely on his state
drug convictions to enhance his sentence, and Williams clearly
understood the significance of the enhancement, given that he
raised various challenges to the use of the convictions in his
prior appeals to this court. Notwithstanding the obvious
significance of the prior convictions to his federal court
sentence, Williams waited more than three-and-a-half years before
challenging the convictions in state court.
It is worth remembering that the “new evidence” at issue here
is a retroactive modification of the convictions that was obtained
by Williams and solely at his behest. No new information about the
state convictions came to Williams after his federal conviction;
5
Prior to 1998, the time for filing a new-trial motion based
on newly discovered evidence ran from the time of “final judgment,”
which was interpreted to refer to action at the appellate level.
See Fed. R. Crim. P. 33, Adv. Comm. Notes to 1998 amendments.
14
the modification of the convictions was based on facts that
Williams knew at least by the time of the federal sentencing, if
not years earlier when he pleaded guilty to the state drug charges.
Given the ease with which the modification was obtained (it was
granted the same day the motion was filed), we can only assume that
Williams could have obtained modification at any earlier point in
the federal proceeding, if he had only bothered to ask.
To be sure, there is evidence in the record showing that
Williams took some limited action within a few months after he was
sentenced on the federal charge. In January 2000, Williams filed
a motion in state court seeking a transcript of the state
proceedings. That request was denied in February 2000 because
Williams had not sufficiently explained why he needed the
transcript. In March 2000, Williams sought reconsideration of
denial, explaining that he needed the transcripts because he was
“in the process of drafting a petition to attack his prior [state]
convictions.” The North Carolina court denied the request for
reconsideration. As far as the record reveals, Williams’ efforts
then came to a halt, to finally be revived in April 2003. We
simply cannot conclude that requesting a transcript (which, so far
as the record reveals, was not necessary to obtaining the
modification of the state convictions)6 and then abandoning the
6
In his motion seeking modification of the state convictions,
Williams alleged that his attorney informed him that the offenses
“would thereafter be considered as a single offense for future
15
effort for three years amounts to the exercise of due diligence in
seeking a modification of his state convictions.
Because Williams waited more than three years after he was
sentenced to seek a modification of his state drug convictions, we
conclude that he failed to exercise due diligence as required by
the newly-discovered evidence exception to the mandate rule. See
Johnson, 125 S. Ct. at 1582 (concluding that defendant who waited
more than three years after federal sentencing to seek the vacatur
of state convictions did not exercise due diligence).7 And because
Williams cannot satisfy the requirement for the newly-discovered
evidence exception, the district court properly adhered to our
mandate and properly refused to consider the evidence of Williams’
modified state convictions.
sentencing purposes.” J.A. 44. The motion included no reference
to any part of the transcript of the prior proceedings. Moreover,
we note that Williams does not argue on appeal that the transcript
was necessary for the modification request or that his delay in
seeking the modification was caused by a delay in obtaining the
transcript.
7
The government contends that the modification obtained by
Williams, which reduced the drug-sales charges to drug-possession
charges, is nothing more than a “twelve-year-delayed plea bargain.”
Appellee’s Supplemental Brief at 5. The government seems to
suggest that this kind of retroactive plea-bargaining should not
affect Williams’ designation as an armed career criminal as would
an order vacating a predicate state conviction. Given our
conclusion that Williams does not meet the requirements of the
newly-discovered evidence exception to the mandate rule, we need
not consider this argument.
16
III.
In a supplemental filing, Williams contends that his sentence
was imposed in violation of his Sixth Amendment rights as set forth
in Blakely v. Washington, 542 U.S. 296 (2004) and United States v.
Booker, 125 S. Ct. 738 (2005). Because Williams raises the issue
for the first time on appeal, we review for plain error only. See
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).
In Booker, the Supreme Court held that the Sixth Amendment is
violated when a district court imposes a sentence under the
Sentencing Guidelines that is greater than the maximum sentence
authorized by the facts found by the jury alone. See Booker, 125
S. Ct. at 756. Although Williams’ presentence report included
certain fact-based enhancements to his base offense level, those
enhancements were mooted by the designation of Williams as an armed
career criminal, a designation that carries with it a higher base
offense level under the Guidelines. See U.S.S.G. § 4B1.4(b).
Because the fact-based enhancements were not applied, there is no
Sixth Amendment violation in that regard. To the extent that
Williams contends his designation as an armed career criminal
violates the Sixth Amendment, the argument fails, because the facts
necessary to support the ACCA enhancement were inherent in the fact
of the predicate convictions. See United States v. Thompson, 421
F.3d 278, 283 (4th Cir. 2005) (concluding that enhanced sentencing
under the ACCA does not amount to a Booker error if “the facts
17
necessary to support the enhancement inhere in the fact of
conviction”); United States v. Cheek, 415 F.3d 349, 354 (4th Cir.
2005) (concluding that a district court’s reliance on a defendant’s
prior convictions to support an enhanced sentence under the ACCA
does not violate the Sixth Amendment). Williams’ Sixth Amendment
challenges to his sentence are therefore without merit.8
IV.
For the foregoing reasons, the district court’s order
sentencing Williams to 293 months imprisonment is hereby affirmed.
AFFIRMED
8
Williams does not object to his sentence on the grounds that
the district court erred by treating the Guidelines as mandatory.
See United States v. White, 405 F.3d 208, 216 (4th Cir. 2005).
18