UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5132
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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(unpublished).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
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