United States v. Williams

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-5041

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CONSTANZUS MARCEL WILLIAMS,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (6:07-cr-00270-GRA)

Submitted: October 16, 2008 Decided: November 3, 2008

Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ryan L. Beasley, PRICE, ASHMORE & BEASLEY, P.A., Greenville, South
Carolina, for Appellant. Elizabeth Jean Howard, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Constanzus Marcel Williams pled guilty pursuant to a

written plea agreement to one count of possessing a firearm after

being convicted of a felony, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(e) (2000). The court sentenced Williams to

212 months in prison, and Williams timely appealed. Williams’

attorney filed a brief in accordance with Anders v. California, 386

U.S. 739 (1967), certifying that there are no meritorious grounds

for appeal, but questioning whether the district court erred in

calculating Williams’ criminal history points and abused its

discretion by not imposing a lower sentence. The Government did

not file a reply brief. Williams submitted a pro se supplemental

brief contending that the district court improperly assessed

certain criminal history points and the district court exhibited

bias during sentencing. Finding no reversible error, we affirm.

Williams argues that the court erred by counting prior

convictions as separate offenses in calculating his criminal

history. Williams argues that because some of his state sentences

were run concurrently or because he was sentenced on the same date

for several offenses, the offenses should not be counted separately

in calculating his criminal history. Pursuant to U.S. Sentencing

Guidelines Manual (U.S.S.G.) § 4A1.2(a)(2) (2006), “[p]rior

sentences imposed in unrelated cases are to be counted separately”

in the criminal history calculation. The commentary to this

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guideline provides that “[p]rior sentences are not considered

related if they were for offenses that were separated by an

intervening arrest,” but will be considered related if the offenses

“occurred on the same occasion,” “were part of a single common

scheme or plan,” or “were consolidated for trial or sentencing.”

§ 4A1.2 comment. (n.3). Here, there is no contention that the

offenses actually occurred on the same occasion or were part of a

common plan. Moreover, the presentence report provides no

indication that Williams’ convictions were consolidated for

sentencing; rather, he received separate sentences for each

conviction. See United States v. Allen, 50 F.3d 294, 296-98 (4th

Cir. 1995) (absent formal consolidation, single sentencing

proceeding and concurrent sentences do not make convictions related

for criminal history purposes). Thus, our review of the record

leads us to conclude that the district court did not err in

calculating Williams’ criminal history.

Williams next suggests that the 212-month term of

imprisonment imposed by the district court was unreasonable. After

United States v. Booker, 543 U.S. 220 (2005), a district court is

no longer bound by the range prescribed by the sentencing

guidelines. However, in imposing a sentence post-Booker, courts

still must calculate the applicable guidelines range after making

the appropriate findings of fact, and consider the range in

conjunction with other relevant factors under the guidelines and 18

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U.S.C.A. § 3553(a) (West 2000 & Supp. 2008). Gall v. United

States, 128 S. Ct. 586, 596 (2007). The court must give “both

parties an opportunity to argue for whatever sentence they deem

appropriate,” and the district judge “may not presume that the

Guidelines range is reasonable.” Gall, 128 S. Ct. at 596-97. This

court will affirm a post-Booker sentence if it “is within the

statutorily prescribed range and is reasonable.” United States v.

Moreland, 437 F.3d 424, 433 (4th Cir. 2006) (internal quotation

marks and citation omitted). On appellate review, this court may

presume that a sentence within the properly calculated advisory

guidelines range is reasonable. Rita v. United States, 127 S. Ct.

2456, 2462, 2465 (2007).

Here, the district court sentenced Williams after

considering and examining the sentencing guidelines and the

§ 3553(a) factors, as instructed by Booker, and applied the

guidelines as advisory. The court correctly sentenced Williams as

an armed career criminal under 18 U.S.C. § 924(e) and U.S.S.G.

§ 4B1.1, finding that he had the three requisite predicate

offenses. The court heard from both Williams and the Government

regarding the calculation of his criminal history score and

Williams was permitted to argue for a lower sentence. The court

sentenced Williams to 212 months, the middle of the advisory

guidelines range.

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 The district court imposed a sentence within the

guideline range and the statutory maximum. Neither Williams nor

the record suggests any information to rebut the presumption that

his sentence was reasonable. We therefore conclude that the

sentence was reasonable.

In his pro se supplemental brief, Williams alleges that

the court demonstrated judicial bias in fashioning his sentence.

A judge “shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned,” 28 U.S.C. § 455(a)

(2000); see United States v. Cherry, 330 F.3d 658, 665 (4th Cir.

2003), or in situations in which the judge has a personal bias or

prejudice against or in favor of an adverse party. See Liteky v.

United States, 510 U.S. 540, 555 (1994). Williams’ allegations of

bias stem from the court’s statements about Williams’ extensive

criminal history, his danger to the community, and his spurious

objections at sentencing to his past criminal convictions. The

record reveals no indication that these comments arose from a

personal, extrajudicial source. We have concluded that the court’s

sentence was reasonable. Williams thus fails to establish that the

judge demonstrated bias or prejudice.

In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal. We

therefore affirm Williams’ conviction and sentence. This court

requires that counsel inform Williams, in writing, of the right to

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petition the Supreme Court of the United States for further review.

If Williams requests that a petition be filed, but counsel believes

that such a petition would be frivolous, then counsel may move in

this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Williams.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED

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