UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4215
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CORNELIUS GRANT WILLIAMS, JR.,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 07-8150)
Submitted: February 29, 2008 Decided: May 5, 2008
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert A. Ratliff, Mobile, Alabama, for Appellant. Chuck
Rosenberg, United States Attorney, Daniel Grooms, Assistant
United States Attorney, Olivia Hussey, Special Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cornelius Grant Williams, Jr. was convicted on two drug-
related counts: (1) conspiracy to distribute fifty grams or more
of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846
(“Count One”); and (2) distribution of five grams or more of
crack cocaine, in violation of § 841(a)(1) (“Count Two”). The
district court sentenced Williams to life imprisonment for Count
One--the statutory minimum punishment under § 841(b)(1)(A)(iii)
for a third felony drug offense--and to a concurrent term of 360
months’ imprisonment for Count Two. We affirmed his convictions
and sentence on direct appeal. United States v. Cornelius Grant
Williams, Jr., 229 F. App’x 218 (4th Cir. 2007) (unpublished)
(“Cornelius Grant Williams I”).
On January 22, 2008, the Supreme Court granted Williams’s
petition for writ of certiorari, vacated the judgment of this
court, and remanded the case for further consideration in light
of Kimbrough v. United States, 128 S. Ct. 558 (2007). Because
the statutory minimum sentence for Count One is life
imprisonment, we find that any Kimbrough error in determining the
sentence for either count was harmless. We therefore affirm his
convictions and sentence.
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I.
After a jury found him guilty on both counts, Williams moved
for a new trial, arguing that the district court should have
allowed him to terminate his court-appointed counsel and select a
court-appointed attorney of his own choosing. The district court
denied the motion, and Williams challenges such denial here. We
review the denial of a motion for a new trial for abuse of
discretion. United States v. Greene, 834 F.2d 86, 88 (4th Cir.
1987). It is an abuse of discretion to rely on an erroneous legal
premise in denying such a motion. See United States v. Hedgepeth,
418 F.3d 411, 419 (4th Cir. 2005). We review legal issues de novo.
See United States v. Legree, 205 F.3d 724, 728 (4th Cir. 2000).
Williams argues that the district court erred by refusing to
appoint an attorney of Williams’s own choosing, citing United
States v. Gonzalez-Lopez, 126 S. Ct. 2557 (2006).1 Indeed,
Gonzales-Lopez confirms that the Sixth Amendment “commands . . .
that the accused be defended by the counsel he believes to be
1
Williams couches this challenge as an ineffective assistance
of counsel claim, but the Gonzalez-Lopez Court made clear that the
right to counsel of choice and the right to effective assistance of
counsel are distinct rights, though both sounding in the Sixth
Amendment. See id. at 2562-63. To the extent that Williams
intends his challenge to also be heard as an ineffective assistance
of counsel claim, the claim must fail because he has offered little
to show the performance of his counsel was, in fact, deficient.
See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)
(noting that ineffective assistance of counsel claims are
disfavored on direct appeal unless the record “conclusively”
demonstrates deficient performance).
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best.” Id. at 2562. The Court limited the scope of this right,
however: “[T]he right to counsel of choice does not extend to
defendants who require counsel to be appointed for them.” Id. at
2565. Williams could not afford retained counsel; therefore, he
had no right to choose the particular attorney that the court
appointed for him. Thus, the district court properly denied
Williams’s motion for a new trial.
II.
Williams also lodges two constitutional challenges to his
sentence, which we review de novo. See United States v. Cheek, 415
F.3d 349 (4th Cir. 2005).
A.
Williams argues that the district court erroneously applied a
career-offender enhancement to his sentence without submitting the
fact of the prior offenses to a jury, in violation of the Sixth
Amendment. The Supreme Court explicitly held in United States v.
Booker, 543 U.S. 220 (2005), however, that “[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 must be admitted by the defendant or
proved to a jury beyond a reasonable doubt." 543 U.S. at 244
(emphasis added). As this court has since made clear, “the Supreme
Court continues to hold that the Sixth Amendment (as well as due
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process) does not demand that the mere fact of a prior conviction
used as a basis for a sentencing enhancement be pleaded in an
indictment and submitted to a jury for proof beyond a reasonable
doubt.” Cheek, 415 F.3d at 352.
Nonetheless, Williams claims that Shepard v. United States,
544 U.S. 13 (2005), decided just two months after Booker, implies
that disputed facts of a prior conviction are no longer excepted
from Booker’s holding. In particular, Williams argued before the
district court that one of his prior convictions, a felony under
federal law, would have been prosecuted as a misdemeanor under
Virginia state law. Williams appears to suggest on appeal that
this argument created a factual dispute as to the nature of his
prior conviction that should have been resolved by a jury.
This court has read Shepard as “instruct[ing] [lower courts]
to review ‘the statutory definition, charging document, written
plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant
assented’” to determine whether “prior convictions . . . fall
within a federal sentencing enhancement provision.” United States
v. Nelson, 484 F.3d 257, 261 n.3 (4th Cir. 2007) (quoting Shephard,
544 U.S. at 16). Courts are not to resort to other extrinsic
evidence such as underlying police reports or complaint
applications to determine the nature of a prior conviction.
Shepard, 544 U.S. at 16. Here, however, Williams conceded before
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the district court that his two prior drug convictions were indeed
felonies under federal law. This is all that was required to be
shown for the district court to apply the enhanced sentencing
provisions applicable to Williams’s offenses; there simply was no
factual dispute regarding the prior convictions remaining for a
jury to resolve. The district court ran afoul of neither Booker
nor Shepard, then, in engaging in judicial factfinding for purposes
of enhancing Williams’s sentence on the basis of his prior
convictions.
B.
Williams also argues that the district court committed Booker
error by treating the United States Sentencing Guidelines (the
“Guidelines”) as mandatory, rather than advisory, in declining to
impose a more lenient sentence on the basis of the Guidelines’
disparate treatment of the crack and powder forms of cocaine. Of
course, Williams’s sentence for his Count One conviction was not
dependent on the Guidelines, since he faced a mandatory minimum
sentence of life imprisonment. Williams recognized as much before
the district court in his written objections to the Presentence
Report (the “PSR”), acknowledging that his two prior convictions
“create[] a situation in which he is facing life imprisonment” as
a minimum sentence. J.A. Vol II., at 28. In hopes that the
district court would find merit in his challenge to his prior
convictions, however, Williams asked the court to consider, under
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18 U.S.C. § 3553(a), the harsher punishment exacted upon drug
offenders dealing in crack than those dealing in powder cocaine.
The district court nevertheless imposed the statutory minimum
sentence of life imprisonment for Count One, and a concurrent
sentence of 360 months’ imprisonment for Count Two, at the bottom
of the Guidelines range of 360 months to life. On appeal to this
court, Williams argues that the district court, by not considering
his argument that crack cocaine offenses are disproportionately
punished in comparison to powder cocaine offenses, effectively
treated the Guidelines as mandatory in violation of Booker.
In Cornelius Grant Williams I, we rejected this line of
argument and affirmed Williams’s sentence on the basis, inter alia,
of this court’s precedent in United States v. Eura, 440 F.3d 625
(4th Cir. 2006), which prohibited sentencing courts from
considering the supposed inequity of the disparate treatment of
crack and powder cocaine in fashioning a Guidelines sentence. See
id. at 633 (“[S]entencing courts should not be in the business of
making legislative judgments concerning crack cocaine and powder
cocaine. . . . [I]t simply would go against two explicit
Congressional directives to allow sentencing courts to treat crack
cocaine dealers on the same, or some different judicially-imposed,
plane as powder cocaine dealers.”). After our opinion in Cornelius
Grant Williams I, however, the Supreme Court issued United States
v. Kimbrough, 128 S. Ct. 558 (2007), which effectively overruled
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Eura. The Kimbrough Court held that “it would not be an abuse of
discretion for a district court to conclude when sentencing a
particular defendant that the crack/powder disparity yields a
sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes,
even in a mine-run case.” 128 S. Ct. at 575. It is the impact of
Kimbrough on Williams’s sentence that forms the basis for the
instant remand of Cornelius Grant Williams I.
Kimbrough did nothing to alter the settled rule that Booker-
type errors are subject to harmless-error analysis, see United
States v. Robinson, 460 F.3d 550, 557-58 (4th Cir. 2006) (applying
harmless-error analysis to Booker claims on Supreme Court remand).
An error that does not affect a defendant’s substantial rights is
harmless. Id. at 557. A defendant’s substantial rights are not
affected if “the court would have imposed the same sentence in the
absence of the constitutional error.” United States v. Shatley,
448 F.3d 264, 267 (4th Cir. 2006).
Here, even if the district court had been sympathetic to
Williams’s argument that the crack/powder disparity is unfair, it
would have had no choice but to sentence Williams to life
imprisonment, the statutory minimum sentence for Count One. Any
Kimbrough error, then, was harmless, as Williams “would have
[received] the same sentence in the absence of the constitutional
error.” Shatley, 448 F.3d at 267. See also United States v.
Blandin, 154 F. App’x 325, 327 (unpublished) (4th Cir. 2005)
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(holding that “there is simply no Booker error” where a defendant
was sentenced to the statutory minimum sentence); United States v.
Jones, 205 F. App’x 327, 338 (6th Cir. 2006) (unpublished) (“We
have held that when the defendant has been sentenced to the
statutory mandatory minimum, Booker is not implicated.”); United
States v. Raad, 406 F.3d 1322, 1323 n.1 (11th Cir. 2005) (finding
harmless Booker error where defendant received statutory minimum
sentence); United States v. Sharpley, 399 F.3d 123, 127 (2d Cir.
2005) (holding that a Booker error committed alongside the
imposition of a statutory minimum sentence “is a prototypical
example of harmless error”). To remand for resentencing under
these circumstances “would amount to an empty formality,” Shatley,
448 F.3d at 268 (internal quotations omitted), that we decline to
undertake. Cf. Jones, 205 F. App’x at 338 (“We have declined to
remand for resentencing pursuant to Booker an appeal from a
sentence imposed for one count when the defendant received a longer
or equal statutory mandatory minimum term on another count and the
two run concurrently.”).
IV.
Accordingly, we affirm Cornelius Grant Williams, Jr.’s
conviction and sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid in the
decisional process.
AFFIRMED
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