United States v. Williams

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-5132

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

JAMES HAMPTON WILLIAMS, II,

Defendant – Appellant,

DONNA C. ADKINS; ALISIA H. AKBAR; CHERYL L. AMAKER; LACARIA
BROWN; LUTHER BRYAN; CHASE MANHATTAN MORTGAGE CORPORATION;
LAVACA COUNTY TEXAS; RANDY MARTIN; GEORGEAN MCCONNELL;
JOSEPH E. MCCONNELL; CHRISTOPHER M. MORRIS; FLORENCE
NOLLKAMPER; GUSSIE D. NOLLKAMPER; JOHN M. WARTHER; WELLS
FARGO HOME MORTGAGE, INCORPORATED,

Parties-in-Interest.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:02-cr-00548-CMC-3)

Submitted: March 23, 2009 Decided: April 24, 2009

Before WILLIAMS, Chief Judge, and NIEMEYER and MICHAEL, Circuit
Judges.

Affirmed by unpublished per curiam opinion.
Leland B. Greeley, LELAND B. GREELEY, P.A., Rock Hill, South
Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Jimmie Ewing, Jane B. Taylor, Assistant United States
Attorneys, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

James Hampton Williams, II, was convicted by a jury on

several counts related to his participation in a large-scale,

ten-year long conspiracy to distribute cocaine and cocaine base,

and was sentenced to life in prison. Specifically, Williams was

convicted of one count of conspiracy to distribute five

kilograms or more of cocaine and fifty grams or more of cocaine

base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006); one

count of conspiracy to launder money, in violation of 18 U.S.C.

§ 1956 (2006); one count of cocaine distribution, in violation

of 21 U.S.C. § 841(a)(1) (2006); and one count of possession

with intent to distribute 500 grams of more of cocaine, in

violation of 21 U.S.C. § 841(a)(1).

Williams appealed, challenging his conviction and

sentence. We affirmed Williams’ conviction but because he was

sentenced under the then-mandatory Sentencing Guidelines,

vacated and remanded for resentencing consistent with United

States v. Booker, 543 U.S. 220 (2005). See United States v.

Williams, 227 F. App’x 307 (4th Cir. May 16, 2007) (No. 04-4654)

(unpublished).

On remand, the district court imposed a 360-month

variance sentence and Williams timely appealed. Williams claims

that the district court erred when it calculated his Guidelines

range without a jury finding the facts supporting the Guidelines

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range beyond a reasonable doubt. Williams also asserts that the

district court erred by failing to instruct the jury that it

must find that the drug quantities contained in the conspiracy

were reasonably foreseeable to Williams, as required by United

States v. Collins, 415 F.3d 304, 311-15 (4th Cir. 2005) (holding

that in order for a trial court to determine which of the three

graduated penalty subsections of 21 U.S.C. § 841(b) applies to

defendants convicted of a § 846 drug conspiracy, the jury must

be instructed to determine the threshold quantity of drugs

attributable to each conspiracy defendant on trial). Finding no

reversible error, we affirm.

We conclude that Williams’ Sixth Amendment rights were

not violated because the district court enhanced Williams’

Guidelines range based on facts found by it under a

preponderance of the evidence standard. Because the district

court appropriately treated the resultant Guidelines range as

merely advisory, and since Williams’ sentences on each count

were within the statutory maximums authorized by the jury’s

verdict, we find that the district court fully complied with the

Sixth Amendment. See Booker, 543 U.S. at 232-44 (holding that

judge found sentence enhancements mandatorily imposed under the

Guidelines that result in a sentence greater than that

authorized by the jury verdict or facts admitted by the

defendant violate the Sixth Amendment’s guarantee of the right

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to trial by jury); see also Rita v. United States, 127 S. Ct.

2456, 2465-66 (2007) (recognizing that its “Sixth Amendment

cases do not automatically forbid a sentencing court to take

account of factual matters not determined by a jury and to

increase the sentence in consequence”); United States v.

Benkahla, 530 F.3d 300, 312 (4th Cir. 2008) (recognizing only

that “the Guidelines must be advisory, not that judges may find

no facts”), cert. denied, 129 S. Ct. 950 (2009).

It is undisputed that Williams did not raise a

Collins-type objection (i.e., challenge the conspiracy’s drug

weights attributed to him) at trial or on his first appeal.

Because such an objection could have been raised but was not,

the Government asserts that Williams’ Collins objection is

precluded by the mandate rule. See Volvo Trademark Holding

Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir.

2007) (“[A] remand proceeding is not the occasion for raising

new arguments or legal theories.”); United States v. Bell,

5 F.3d 64, 66 (4th Cir. 1993) (stating that the mandate rule

“forecloses relitigation of issues expressly or impliedly

decided by the appellate court,” as well as “issues decided by

the district court but foregone on appeal.”).

We need not decide whether the Government is correct

that Williams’ Collins argument is foreclosed by the mandate

rule. It is abundantly clear that even if Williams’ Collins

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argument is entertained, his failure to object to the drug

weights for which he was held responsible renders any Collins

error harmless. See United States v. Brown, 202 F.3d 691,

700-01 (4th Cir. 2000) (“[I]f the element was uncontested and

supported by overwhelming evidence, the harmless error inquiry

ends, and we must find the error harmless.”).

Moreover, we find that even if we were to vacate

Williams’ sentence on his conspiracy charge, Williams would

still be subject to a 360-month sentence for his cocaine

distribution conviction. Thus, even if the Collins claim was

properly before this court and found to be meritorious, it would

still afford Williams no relief as the district court’s sentence

on remand would have been the same. See United States v. Abu

Ali, 528 F.3d 210, 231 (4th Cir. 2008) (recognizing that an

error “will be deemed harmless if a reviewing court is able to

say, with fair assurance, after pondering all that happened

without stripping the erroneous action from the whole, that the

judgment was not substantially swayed by the error”) (internal

citations and quotation marks omitted).

Based on the foregoing, we affirm the district court’s

judgment. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

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before the court and argument would not aid the decisional

process.

AFFIRMED