In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3174
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A DAM W ILLIAMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:08-cr-43—James T. Moody, Judge.
A RGUED M AY 18, 2010—D ECIDED A UGUST 5, 2010
Before O’C ONNOR,1 Associate Justice, and K ANNE and
R OVNER, Circuit Judges.
K ANNE, Circuit Judge. Appellant Adam Williams
appeals his conviction for illegal possession of a firearm
and various drug distribution offenses. He argues that
1
The Honorable Sandra Day O’Connor, Associate Justice
(Retired) of the United States Supreme Court, sitting by des-
ignation.
2 No. 09-3174
(1) the district court’s failure to inquire into his con-
cerns over his attorney’s performance was an abuse of
discretion; (2) the statute dispossessing felons of fire-
arms, 18 U.S.C. § 922(g)(1), is unconstitutional; and (3) the
district court’s assessment of the sentencing factors in
18 U.S.C. § 3553(a) was inadequate. We affirm.
I. B ACKGROUND
As part of a narcotics investigation, in early 2008 the
Hammond, Indiana Police Department enlisted the help
of a confidential informant (“CI”) in making controlled
purchases of crack cocaine and marijuana from Appel-
lant Adam Williams. On three separate occasions, the
CI, wearing audio and video recording devices, pur-
chased narcotics from Williams. Based on this electronic
surveillance, Hammond police officers obtained a search
warrant for Williams’s house.
In April 2008, officers arrived at Williams’s home to
execute the warrant. After knocking on the door to an-
nounce their presence and receiving no answer from
within, the officers broke down the door. As one of the
officers entered, he saw Williams approaching with a
handgun pointed toward the doorway. As the other
officers entered the house, Williams retreated to his
bedroom and placed the gun on the ground a few
inches from him. The officers then arrested Williams
without incident.
The day after his arrest, federal agents from the
Bureau of Alcohol, Tobacco, and Firearms went to the
No. 09-3174 3
Hammond city jail to question Williams. After receiving
his Miranda rights, Williams explained to agents that
when the officers had arrived to execute the warrant, he
believed that someone was breaking into his house in
an attempt to rob him, which is why he had retrieved
the gun from under his bed. He then proceeded to
make various inculpatory statements during a video-
taped interview. For example, Williams confessed to
selling crack, but not marijuana (he claimed that he
possessed the latter only for personal use). He told
agents that he had been earning approximately $150
per week through his crack sales. Williams also made
incriminatory statements about the use to which he
put drug paraphernalia found at his home; he ex-
plained that he used rubber gloves when he was
bagging drugs to keep the drugs out of his system.
Williams subsequently stood trial by jury. At trial,
Williams testified in his own defense. He claimed never
to have sold crack or marijuana to the CI despite his
earlier confession to the contrary. Instead, he claimed
that he and the CI had pooled their resources to pur-
chase shared drugs from another dealer named “Casino.”
He also explained that his statement that he had been
earning $150 each week from crack sales was “misunder-
stood” by federal agents. Rather, he claimed that he
had bought the crack to use as Christmas party favors,
and after changing his mind, tried to recoup his ex-
penses by selling the crack. He also tried to negate his
inculpatory statement regarding the drug paraphernalia
by explaining that it belonged to Casino, who did not
live with Williams, but sometimes bagged his drugs in
4 No. 09-3174
Williams’s home. Finally, Williams testified that the
handgun did not belong to him, but to his sister, who
left it with him to use for his protection.
On the second day of trial, during the government’s
case-in-chief, Williams asked to speak to the judge
outside of the jury’s presence. Williams explained to
the trial judge that he had not seen one of the video
recordings until it was played by the prosecution, de-
spite his request to review all of the video and audio re-
cordings prior to trial.2 The following exchange occurred:
The Court: Okay. . . . Counsel, are both of
you ready to go?
[AUSA] Lanter: Yes.
Williams: Your Honor, can I speak?
The Court: What do you want?
Williams: I feel that I would like for you to
read this.
The Court: Why? Look, we are in the mid-
dle of a trial, sir.
Williams: Yes, sir. I understand. There’s
some things that has [sic] oc-
curred in my case that I feel
did not come out between me
2
Two weeks prior to trial, Williams had written his attorney,
asking his attorney to perform a video analysis of the CI’s
recordings. The record does not specify what this analysis
would entail or whether this analysis was ever completed.
No. 09-3174 5
and my lawyer. I did not see
the video of 3/25 until yester-
day when it was shown to the
jury, and I had requested to
see all the audio, all the video.
The Court: Look, you have a lawyer. He’s
a very professional individual.
You are not—
Williams: This is correct.
The Court: —trying this case on your own
and you can’t do that.
Williams: Yes, sir. I understand.
The Court: So that’s just between you and
him, sir.
Williams: That’s the point I’m trying to
make. I feel like my lawyer has
failed me.
The Court: Not yet. Too late. We’re in the
middle of a trial. We are going
to go forward. I don’t care—at
this stage, I really don’t care
what you think. You got it?
Williams: Yes, sir.
The Court: Good. Get the jury in.
(App. at 8-9.) Williams expressed no further concerns
after this exchange, and did not move for a new trial.
The jury acquitted Williams on one count of marijuana
distribution and one count of possessing a firearm
6 No. 09-3174
in furtherance of drug trafficking. But the jury found
Williams guilty on one count of distributing marijuana,
two counts of distributing cocaine base, one count of
possessing with intent to distribute crack cocaine, and
one count of possessing a firearm as a felon. Williams
now appeals his conviction.
II. A NALYSIS
A. Sixth Amendment Right to Counsel
Williams first contends that the district court abused
its discretion by declining to inquire further into
Williams’s expressed concerns over his attorney’s per-
formance. We held in United States v. Zillges that
“[w]hen, for the first time, an accused makes known to
the court in some way that he has a complaint about
his attorney, the court must rule on the matter.” 978 F.2d
369, 371 (7th Cir. 1992). If the accused expresses the
reasons for his concerns to the court, “the court may
rule without more.” Id. But if the accused does not state
the reasons for his concerns, “the court then has a duty
to inquire into the basis for the client’s objection to
counsel and should withhold a ruling until reasons are
made known.” Id. at 372; see also United States v. Morris,
714 F.2d 669, 673 (7th Cir. 1983).
Zillges, however, involved a defendant’s express
request for the appointment of new counsel. 978 F.2d at
371. Williams was not requesting a new attorney, but
simply was expressing concerns over his current attor-
ney. We have not yet had occasion to expound on
No. 09-3174 7
Zillges’s application in the latter situation. Today, we do.
We think that the reasoning in Zillges applies with
equal force regardless of whether a complaint is phrased
in terms of an express motion for a new attorney or
simply in terms of dissatisfaction with one’s current
attorney.
The government admits that when construed liberally,
Williams’s comments lend themselves to the possibility
that he was either requesting a new attorney or the per-
mission to proceed pro se. The government therefore
admits that the court should have inquired further into
Williams’s concerns instead of abruptly silencing him.
We agree. The district court declined to use the oppor-
tunity to inquire fully into Williams’s perceived prob-
lems with his attorney. The district court’s dismissal of
Williams’s concerns was an abuse of discretion, and
served to stifle what may have been legitimate con-
cerns that Williams had about his attorney’s performance.
Because we have never addressed a situation where a
district court did not inquire into a defendant’s concerns
with his current attorney, we also have not had occasion
to determine the effect of an abuse of discretion in
those circumstances. We now hold that the district
court’s abuse of discretion will only result in a new trial
if Williams can show prejudice. If not, then any error
was harmless.
In Zillges, we analogized to Strickland v. Washington, 466
U.S. 668 (1984), in reaching our determination that “a
district court’s failure to conduct a sufficient inquiry
into a substitution motion does not constitute reversible
8 No. 09-3174
error unless it result[s] in a denial of this Sixth Amend-
ment right.” 978 F.2d at 372. We thus determined that
a failure to inquire was not a structural error requiring
automatic reversal, but instead, was subject to the
harmless error standard. Id. at 372-73. To prevail, the
defendant was required to “demonstrate that the perfor-
mance of his attorney was not within the range of compe-
tence demanded of attorneys in criminal cases, and that
but for counsel’s deficiencies, the result of the pro-
ceeding would have been different.” Id. (citing Strickland,
466 U.S. at 687, 694) (internal quotation marks omitted).
Zillges and Strickland guide our decision in this case.
If a defendant who makes an express motion for sub-
stitute counsel must show prejudice to prevail on a
district court’s failure to inquire, then so too must a
defendant who makes only an implicit motion.
Unfortunately for Williams, he is unable to satisfy
Strickland’s burden. First, Williams is unable to show that
his attorney’s performance was incompetent. The only
evidence he points to of incompetence is that his attor-
ney did not review with him the video recordings prior
to trial. And while standing alone this may potentially
give rise to a possibility of deficient performance, when
coupled with the actions that Williams’s attorney did
take, we cannot say that the attorney’s performance was
incompetent. For example, Williams’s attorney knowl-
edgeably questioned the witnesses, including Williams,
about the recordings. During his closing argument,
the attorney demonstrated his familiarity with the re-
cordings, even commenting at one point about his ex-
No. 09-3174 9
tensive review of them. Because this evidence demon-
strates Williams’s attorney’s preparation and review of
the recordings, Williams has failed to show that his at-
torney’s performance was deficient.
Second, even if Williams could demonstrate his attor-
ney’s incompetence, he is unable to establish a rea-
sonable possibility that the results would have been
different “but for” his attorney’s allegedly deficient
performance. We recognize that Williams was acquitted
on one charge of marijuana distribution, so there is a
small chance that the videos may have shown excul-
patory evidence if Williams had the chance to review
them prior to trial. But a remote possibility is different
than the reasonable possibility required by Strickland.
And the remote possibility presented here has even less
significance in light of the fact that the other evidence
of Williams’s guilt is overwhelming.
For example, because the video recordings were consis-
tent with the other evidence presented at trial, there
is nothing to suggest that they were inauthentic. And
even if Williams is not arguing that the videos were
inauthentic, but only that the videos did not demon-
strate his guilt, the other evidence presented is to the
contrary. The CI gave testimony about the controlled
purchases, and the police officers who supervised the
purchases testified as well. The government also
presented samples of the drugs the CI purchased from
Williams, other physical evidence seized from Williams’s
house, and Williams’s own videotaped inculpatory state-
ments. Under these circumstances, we cannot say that
10 No. 09-3174
Williams demonstrated a reasonable possibility that he
would have been acquitted but for his attorney’s
alleged deficiencies.
Because Williams cannot satisfy his burden under
either prong of the Strickland standard, the district court’s
abuse of discretion was harmless. Therefore, his drug
conviction will be affirmed.
B. Second Amendment Right to Firearm Possession
Williams next argues that the felon-in-possession stat-
ute, 18 U.S.C. § 922(g)(1), is unconstitutional as applied
to him. Prior to trial, Williams moved to dismiss the
charge against him for being a felon in possession of
a firearm. As support for his motion, he cited the
Supreme Court’s recent decision in District of Columbia
v. Heller, 128 S. Ct. 2783 (2008), and our panel opinion
in United States v. Skoien, 587 F.3d 803 (7th Cir. 2009),
vacated and remanded, No. 08-3770, 2010 WL 2735747
(7th Cir. July 13, 2010) (en banc). Based on Heller,
Williams argued that the statute criminalizing his pos-
session of a firearm as a convicted felon was unconstitu-
tional because it infringed on his right to possess fire-
arms for use in self-defense. The district court denied
the motion, relying on Heller’s now-famous dictum
that “nothing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill . . . .” 128 S. Ct.
at 2816-17. Williams appeals the denial of his motion. Re-
viewing de novo the district court’s denial of Williams’s
No. 09-3174 11
motion to dismiss the indictment, United States v. Greve,
490 F.3d 566, 570 (7th Cir. 2007), we affirm.
Williams argues that because the Heller Court deter-
mined that the “core” ideal the Second Amendment
protects is self-defense, the statute criminalizing his
possession of a firearm is unconstitutional as applied
to him. 128 S. Ct. at 2817; see also McDonald v. City of
Chicago, No. 08-1521, 2010 WL 2555188, at *22 (U.S.
June 28, 2010) (plurality opinion). Using our panel
opinion in Skoien as support, Williams argues that the
Heller dictum relied on by the district court should not
be given so much credence. Skoien involved a chal-
lenge to the prohibition on firearm possession by
misdemeanants convicted of domestic violence under
18 U.S.C. § 922(g)(9). Williams proffers that the now-
vacated analytical approach promulgated by the Skoien
panel is the approach we should use in determining
the scope of his rights.
That vacated opinion adopted a two-step approach to
evaluate Second Amendment challenges. First, the panel
determined that courts should examine whether the
challenged conduct falls within the scope of the Second
Amendment’s protection in the first instance. If not, the
challenged regulation is valid. If so, then the court
must move on to step two, which requires courts to
apply some level of “means-ends” scrutiny to establish
whether the regulation passes constitutional muster.
587 F.3d at 808-09.
Thereafter, Skoien was reheard en banc. Without
deciding the question of whether those convicted of
violent crimes were outside the scope of the Second
12 No. 09-3174
Amendment’s protection at the founding, we deter-
mined in our en banc opinion that “some categorical
disqualifications [on firearm possession] are permissible.”
Skoien, 2010 WL 2735747, at *3. To be permissible,
however, we held that categorical exclusions must
satisfy “some form of strong showing.” Id. Finding that
§ 922(g)(9) satisfied this requisite “strong showing,”
we affirmed Skoien’s conviction.
Because briefing and argument in Williams’s case were
completed prior to the en banc argument in Skoien, Wil-
liams anticipated a potential reversal of Skoien’s panel
opinion, and so clarified in his reply brief that his argu-
ment was not dependent on our resolution of Skoien.
Rather, he argued that Heller standing alone supported
his as-applied challenge to § 922(g)(1). But we think that
the en banc decision in Skoien is instructive, especially
when read in conjunction with Heller and the Supreme
Court’s most recent decision in McDonald v. City of
Chicago, 2010 WL 2555188.
In Heller, the Court stated that “[a]ssuming that Heller
is not disqualified from the exercise of Second Amend-
ment rights, the District must permit him to register
his handgun and must issue him a license to carry it in
the home.” 128 S. Ct. at 2822 (emphasis added). This
language indicates that the threshold inquiry is whether
Williams is qualified to possess a firearm in the first
instance. In the Skoien en banc opinion, we implicitly
addressed this issue by beginning our analysis with a
reiteration of Heller’s idea that some categorical exclu-
sions of firearm possession are constitutional. 2010 WL
No. 09-3174 13
2735747, at *3. This notion was also recently affirmed
by the Supreme Court in McDonald, where it “repeat[ed]
[its] assurances” that Heller’s dictum regarding disquali-
fications on firearm possession by felons was valid.
2010 WL 2555188, at *25 (plurality opinion).
Based on these recent decisions and our reasoning in
the Skoien en banc opinion, we need not address whether
convicted felons fell outside the scope of the Second
Amendment’s protections at the time of the founding,
as the Skoien panel opinion did. The academic writing
on the subject of whether felons were excluded from
firearm possession at the time of the founding is “incon-
clusive at best,” Skoien, 2010 WL 2735747, at *11 (Sykes, J.,
dissenting), and we refrain now from making a deter-
mination based on contradictory views. Instead, as we
must, we follow the en banc majority’s holding that
some categorical bans on firearm possession are con-
stitutional. Id. at *3 (majority opinion); see also United
States v. Vongxay, 594 F.3d 1111, 1115 (9th Cir. 2010). For
purposes of Williams’s case, this means that if he falls
within one of the categorical bans, the Second Amend-
ment does not apply to him, assuming, of course, that
the ban satisfies “some form of strong showing.” Skoien,
2010 WL 2735747, at *3. One such categorical ban is on
firearm possession by a convicted felon. See McDonald,
2010 WL 2555188, at *25 (plurality opinion); Heller, 128
S. Ct. 2816-17. And because Williams is a convicted
felon, the ban applies to him.
But the government does not get a free pass simply
because Congress has established a “categorical ban”; it
still must prove that the ban is constitutional, a mandate
14 No. 09-3174
that flows from Heller itself. Heller referred to felon disar-
mament bans only as “presumptively lawful,” which, by
implication, means that there must exist the possibility
that the ban could be unconstitutional in the face of an as-
applied challenge. Therefore, putting the government
through its paces in proving the constitutionality of
§ 922(g)(1) is only proper. And to determine whether
the presumption of lawfulness gives way in this case,
we must apply Skoien’s “strong showing” requirement
to § 922(g)(1) as that statute was applied in this case. In
Skoien we declined to adopt a level of scrutiny ap-
plicable to every disarmament challenge, although we
hinted that it might look like what some courts have
called intermediate scrutiny. Consequently, for purposes
of Williams’s challenge to § 922(g)(1) as it applies to
him, we can examine his claim using the intermediate
scrutiny framework without determining that it would
be the precise test applicable to all challenges to gun
restrictions.
To pass constitutional muster under intermediate
scrutiny, the government has the burden of demon-
strating that its objective is an important one and that
its objective is advanced by means substantially related
to that objective. Cf. Skoien, 2010 WL 2735747, at *3. We
find that the government satisfies its burden. In this case,
the government’s stated objective is to keep firearms out
of the hands of violent felons, who the government be-
lieves are often those most likely to misuse firearms.
See, Note, Selective Incapacitation: Reducing Crime Through
Predictions of Recidivism, 96 Harv. L. Rev. 511, 515 & n.24
No. 09-3174 15
(1982) (noting a study that found that felons convicted
of robbery were among those most likely to commit
future crimes); see also Skoien, 2010 WL2735747, at *3
(“Congress is not limited to case-by-case exclusions
of persons who have been shown to be untrustworthy
with weapons, nor need these limits be established by
evidence presented in court.”); cf. Landers v. State, 299
S.E.2d 707, 709-10 (Ga. 1983) (“[T]he General Assembly
sought to keep guns out of the hands of those individuals
who by their prior conduct had demonstrated that they
may not possess a firearm without being a threat to
society.”). We cannot say that this objective is not an
important one. Cf. Skoien, 2010 WL2735747, at *3 (“[N]o
one doubts that the goal of § 922(g)(9), preventing armed
mayhem, is an important governmental objective.”).
We next must determine whether § 922(g)(1) is sub-
stantially related to this objective in Williams’s case. The
government attempts to show a substantial relationship
between its objective of preventing felons access to
guns and § 922(g)(1) by pointing to Williams’s own
violent past. The government’s evidence passes constitu-
tional muster.
Williams was convicted of felony robbery. In Indiana,
where Williams’s conviction occurred, robbery is violent
by definition. See United States v. Lewis, 405 F.3d 511, 514
(7th Cir. 2005). In fact, Williams’s specific crime in-
volved his beating the victim so badly that the victim
required sixty-five stitches. (App. at 29.) The fact that
Williams was convicted of a violent felony defeats
any claim he has that § 922(g)(1) is not substantially
16 No. 09-3174
related to preventing him from committing further vio-
lence.
And although we recognize that § 922(g)(1) may be
subject to an overbreadth challenge at some point be-
cause of its disqualification of all felons, including those
who are non-violent, that is not the case for Williams.
Even if the government may face a difficult burden of
proving § 922(g)(1)’s “strong showing” in future cases,
it certainly satisfies its burden in this case, where
Williams challenges § 922(g)(1) as it was applied to him.
See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“[A]
person to whom a statute may constitutionally be
applied will not be heard to challenge that statute on
the ground that it may conceivably be applied unconstitu-
tionally to others, in other situations not before the
Court.”). Williams, as a violent felon, is not the ideal
candidate to challenge the constitutionality of § 922(g)(1).
We are further guided in our determination by the fact
that every court to address the constitutionality of
§ 922(g)(1) in light of Heller has upheld that statute. See
United States v. Rozier, 598 F.3d 768, 770-71 (11th Cir.
2010) (per curiam); Vongxay, 594 F.3d at 1114-18; United
States v. Khami, 362 F. App’x. 501, 507-08 (6th Cir. 2010)
(unpublished); United States v. McCane, 573 F.3d 1037, 1047
(10th Cir. 2009), cert. denied, 130 S. Ct. 1686 (2010); United
States v. Stuckey, 317 F. App’x 48, 50 (2d Cir. 2009) (per
curiam); United States v. Anderson, 559 F.3d 348, 352 & n.6
(5th Cir. 2009), cert. denied, 129 S. Ct. 2814 (2009); United
States v. Brunson, 292 F. App’x 259, 261 (4th Cir. 2008)
(per curiam) (unpublished); United States v. Irish, 285
No. 09-3174 17
F. App’x 326, 327 (8th Cir. 2008) (per curiam) (unpub-
lished).
Because Williams was convicted of a violent felony, his
claim that § 922(g)(1) unconstitutionally infringes on his
right to possess a firearm is without merit. We also
note that our en banc decision in Skoien considered and
disposed of an issue similar to Williams’s equal protec-
tion argument, so we need not address it further. 2010
WL 2735747, at *6 (“True, the statute tolerates different
outcomes for persons convicted in different states, but
this is true of all situations in which a firearms
disability . . . depends on state law.”).
C. Title 18 U.S.C. § 3553(a)’s Sentencing Factors
Williams finally argues that the district court erred in
applying the 18 U.S.C. § 3553(a) factors because the
court failed to consider his non-frivolous sentencing
arguments. We review a sentence for both procedural
and substantive reasonableness under an abuse of discre-
tion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
In this case, because Williams raises only a procedural
argument, we need not consider the substantive reason-
ableness of his sentence. Cf. United States v. Farris, 532
F.3d 615, 620 (7th Cir. 2008) (declining to address the
procedural argument when defendant raised only the
substantive argument). A sentence is procedurally unrea-
sonable when a trial court fails to give meaningful consid-
eration to a defendant’s non-frivolous sentencing argu-
ments. United States v. Cunningham, 429 F.3d 673, 679
(7th Cir. 2005).
18 No. 09-3174
Williams contends that the district court erred by
failing to address specifically his argument that he
should receive a reduced sentence because of the crack-to-
powder sentencing disparity. See Spears v. United States,
129 S. Ct. 840, 843-44 (2009). But the district court did
address Williams’s argument; it simply reached a con-
clusion with which Williams disagreed. Williams’s
primary evidence at sentencing was his contention
that the Department of Justice generally acquiesces to
variances in crack sentences when the defendant is not
violent, is not a recidivist, and does not possess a fire-
arm. The court responded to this argument, however,
noting first that the Justice Department’s position
did not reflect the current state of the law. (App. at
28.) The court further determined that certain miti-
gating factors—namely, a non-violent history, a first-
time offender status, and the absence of gun posses-
sion—were nonexistent in this case. (Id. at 29, 32, 33.)
Therefore, the court concluded that Williams was unde-
serving of a sentencing variance.
We think that this explanation was sufficient. It is
evident from the record that the district court listened
to the arguments and considered the evidence and the
defendant’s personal circumstances. See Rita v. United
States, 551 U.S. 338, 357-59 (2007). Because this explana-
tion demonstrated the court’s basis for its reasons,
it matters little that the explanation was brief. Id. We
therefore reject Williams’s sentencing argument.
No. 09-3174 19
III. C ONCLUSION
For the foregoing reasons, Williams’s conviction and
sentence are A FFIRMED.
8-5-10