United States v. Williams

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 15 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 04-3175
JERRY LEE WILLIAMS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 03-CR-10140-JTM)

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal
Public Defender, with him on the briefs), Wichita, Kansas, for Defendant -
Appellant.

David C. Smith, Assistant United States Attorney (Eric F. Melgren, United States
Attorney, and David M. Lind, Assistant United States Attorney, with him on the
brief), Wichita, Kansas, for Plaintiff - Appellee.

Before BRISCOE, ANDERSON, and MURPHY, Circuit Judges.

ANDERSON, Circuit Judge.
 Defendant/Appellant Jerry Lee Williams was found guilty following a jury

trial of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g),

and sentenced as an armed career criminal to a 210-month term of imprisonment.

For the following reasons, we AFFIRM in part and REVERSE in part and

REMAND for resentencing.

BACKGROUND

On July 19, 2003, at approximately 2:00 a.m., three Wichita police officers

responded to a 911 call from a Denny’s restaurant in Wichita, Kansas, indicating

a male customer had a gun. When the officers arrived at the restaurant, they

talked to security guard Donald Lacy, who had made the 911 call. Lacy indicated

that two customers who had been sitting at the back of the restaurant had told him

that a black male at a table in the back of the restaurant was waving a gun around

underneath the table. Lacy testified that he recognized the two customers because

they were regulars, although he did not know their names. The first patron to

report the gun-waving incident indicated that the man with the gun was sitting in

a group of six individuals in the corner of the restaurant. After she relayed this

information to Lacy, her table companion came up to Lacy and told him the same

thing. Both customers did not want to be identified or get involved, and they left

the restaurant before the police arrived.

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 When the police officers arrived at the restaurant, Lacy told them which

table the two patrons had identified. The officers proceeded immediately to the

table where the six individuals, including defendant Williams, were sitting.

Williams was intoxicated to some degree. 1 The officers told the individuals at the

table that a complaint had been made concerning a person waving a gun. The

officers first patted down Terry Douglas, who was sitting in the chair nearest the

officers, and found nothing suspicious on him. They next patted down Montae

Alford, again finding nothing. As the officers patted down Douglas and Alford,

Williams and Ivan Miller sat on a booth-style seat with their backs to the

restaurant wall. There was a discrepancy in the testimony about exactly where

Williams was seated. While everyone agreed that Miller was seated on the

1
Denny’s waitress Michelle McClary testified at trial that Williams “was
very drunk to the point he was nodding off. Lady who was with him had to order
his food for him. He was almost under the table. Only reason he was able to stay
in the booth was because he was holding on to his lady friend.” R. Vol. III at
305. She also testified that his “words were slurred” such that she could not
understand him. Id. at 315. Another Denny’s employee, Shirley Jean Bunch, also
testified that the entire group with Williams was “drunk.” Id. at 319. One of
Williams’ companions at Denny’s, Terry Douglas, testified that Williams had
consumed at least eight drinks and some beers before they went to Denny’s. He
further testified that Williams “wasn’t in good condition” when they got to the
restaurant, and that he had to “[h]elp him get in so he could keep his balance,
keep from falling.” Id. at 275.
By contrast, the officers at the scene testified that Williams was not as
inebriated. Officer Dallas Boone testified that Williams “didn’t appear to be
inebriated in my personal professional experience.” R. Vol. II at 167. Officer
Gabriel Ohmart similarly testified that Williams “was not overly intoxicated by
any means.” Id. at 188.

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outside of the table near the walkway, the officers testified that Williams was

seated a little distance away from him, in the corner of the booth, with a female

companion in between them. Douglas and McClary, the waitress, testified that

Williams was sitting right next to Miller.

The officers repeatedly told Williams and Miller to place and keep their

hands on the table so their hands were visible. Neither individual complied with

the officers’ requests, and both fidgeted on the seat. 2 The officers next patted

down Miller, on whom they found no weapon. When they turned to search

Williams, he hesitated getting up from his seat. Eventually, he made it to the

edge of the table where officers assisted him up. As soon as Williams stood up,

he immediately shoved his hands in his pockets. The officers repeatedly told

Williams to take his hands out of his pockets but he refused. As one of the

officers grabbed Williams’ right arm, a gun in Williams’ right pocket discharged,

hitting him in the thigh. The gun then fell to the floor. As another officer

attempted to retrieve the gun, Alford dove for the gun and reached it first. When

2
Officer Boone testified that Williams “was being very evasive, wouldn’t
look up at me, acting as if he didn’t hear me, didn’t want to look at me right,
adjusting his weight back and forth on each leg, keeping his hands under the
table, with the exception of the one time I seen him take a bite of food, still his
hands went back right underneath the table.” R. Vol. II at 153. He further
testified that Miller “was also not complying about putting his hands on the table,
shifting his weight. He was rubbing his hands on his knees as in a seated
position.” Id. at 164-65. Officer Ohmart also testified that Miller was “fidgeting
with his pocket, moving his left hand back around to his back hip pocket, and he
was shifting his weight from side-to-side.” Id. at 179.

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Alford pointed the gun at the officer, the officer kicked the gun out of Alford’s

hand and took possession of the weapon, a Raven Arms .25 caliber semi-

automatic pistol. Miller ran out of the restaurant after the gun discharged.

The officers took Williams and Alford into custody. After Williams was

treated and released from a hospital for his gunshot wound, he talked to officers

at the police station. Detective Jose Salcida testified at trial that, although he

could smell a “faint odor of alcohol” on Williams’ breath, Williams “was

answering logically to my questions . . . so he didn’t appear so intoxicated that he

didn’t understand why he was there.” R. Vol. III at 256. Williams told Salcida

that Miller had been trying to push the gun on him and that he finally just took

the gun from him, although he claimed he never put it in his pocket. 3

Williams was charged in a one-count indictment with “knowingly

possess[ing], in and affecting commerce, a firearm” after previously being

convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). R. Vol. I, tab 11.

He filed a motion to suppress the gun seized from him as well as his statements to

3
Detective Salcida testified that, during his interview with Williams,
Williams stated that “‘[w]hen the gun slid, I grabbed it and tried to get it away
from the dude – away from dudes, sling it away from me.’” Id. at 266. Salcida
testified that Williams denied that the gun was in his pocket, even though there
was a bullet hole in the pocket. Douglas testified that Miller “had a handgun. He
kept pulling it out, and we told him to put it up because there was going to be
some trouble. Somebody might see it.” Id. at 281. Douglas admitted that he
never told the police that Miller had a gun, nor did he ever deny that Williams
had one.

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the police, which, following a hearing, was denied. He was found guilty by the

jury and sentenced to 210 months’ imprisonment. Further details about specific

events at trial will be discussed in connection with the relevant issues.

While this case was pending on appeal, the Supreme Court issued its

opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004), which held that in a

state prosecution the Sixth Amendment requires that the maximum permissible

sentence in a particular case must be determined solely by reference to “facts

reflected in the jury verdict or admitted by the defendant.” Id. at 2537. In

January of this year, the Court held that Blakely applies to sentences imposed

under the federal Sentencing Guidelines as well. United States v. Booker, 125 S.

Ct. 738, 755 (2005). The Court in Booker further held that the Guidelines are not

mandatory, but are merely advisory. Id. at 756-57.

Williams appeals, arguing: (1) the district court erred in denying his

motion to suppress the firearm because it was based upon an allegedly anonymous

tip; (2) there was insufficient evidence to support his conviction for knowingly

possessing a firearm which was “in or affecting commerce”; (3) the district court

erred in refusing to give Williams’ requested “theory of defense” instruction on

“fleeting possession” of the firearm; (4) the district court erred when, in response

to a jury inquiry, it gave the jury a supplemental instruction on the issue of

Williams’ knowing possession of the firearm; (5) mere movement of the firearm

from one state to another fails to satisfy the § 922(g) requirement that the firearm

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be possessed “in or affecting commerce”; (6) the district court’s enhancement of

Williams’ sentence under the Armed Career Criminal Act violates his rights under

Blakely, Booker, and the Double Jeopardy Clause; and (7) the district court erred

in failing to depart downward and in concluding that it was bound to sentence

Williams within the Guideline range.

DISCUSSION

I. Motion to Suppress

Williams filed a motion to suppress the gun seized from him and his

statements to police on the ground that the police searched him and seized the gun

based solely upon an anonymous tip. 4 “When reviewing the denial of a motion to

suppress, we view the evidence in the light most favorable to the government,

accept the district court’s findings of fact unless clearly erroneous, and review de

novo the ultimate determination of reasonableness under the Fourth Amendment.”

United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir. 2004), cert. denied, 125 S.

Ct. 1390 (2005).

Williams argues that the “tip” provided by the two restaurant patrons to

Lacy, who in turn told the police, informing him that they had seen a black male

waving a gun underneath a restaurant table, was an anonymous tip similar to the

On appeal, Williams only argues that the firearm should have been
4

suppressed.

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one held unreliable in Florida v. J.L., 529 U.S. 266 (2000). In J.L., the Supreme

Court held that an anonymous telephone call indicating that “a young black male

standing at a particular bus stop and wearing a plaid shirt was carrying a gun,” id.

at 268, was, standing alone, unreliable and therefore insufficient to justify a

police officer’s stop and frisk of the defendant. The Court noted that “the

officers’ suspicion that J.L. was carrying a weapon arose not from any

observations of their own but solely from a call made from an unknown location

by an unknown caller.” Id. at 270.

Even were we to assume that the tip was truly “anonymous” like the one in

J.L., 5 this case is distinguishable from J.L. As indicated above, the police in J.L.

relied exclusively on an anonymous tip to search the defendant. Here, the police

officers seized Williams and searched him only after his own conduct gave them

reasonable suspicion to believe he was possibly armed and dangerous. When the

officers first approached the table where Williams was sitting, they simply

informed Williams and his associates that there had been a report of a firearm and

asked to search each individual for weapons. The officers did eventually seize

5
Williams argues that, because the identity of the restaurant patrons who
reported seeing a gun at Williams’ table was never confirmed and they left before
the police arrived, their tip to security guard Lacy is an anonymous tip like that in
J.L. While we need not decide this issue, because we conclude that the seizure of
the firearm was supported by more than just the tip, we note that the tip in this
case had greater indicia of reliability than a truly anonymous tip. The tip was
based upon visual observation by patrons sitting nearby, and the patrons were
regulars at the restaurant whom Lacy knew and recognized, even if not by name.

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Williams, but only after they observed him behaving suspiciously, fidgeting in his

seat and keeping his hands in his pockets despite repeated requests to place them

on the table, thereby giving rise to a reasonable suspicion that he had a weapon in

his pocket. The district court therefore properly denied Williams’ motion to

suppress the firearm.

II. Sufficiency of Evidence Supporting Knowing Possession of Firearm “In
or Affecting Commerce”

Williams argues that there was insufficient evidence demonstrating that he

knowingly possessed the firearm, nor was there sufficient evidence that the gun

was possessed “in or affecting commerce” as required by 18 U.S.C. § 922(g).

“We review sufficiency of the evidence claims de novo.” United States v. Munro,

394 F.3d 865, 869 (10th Cir. 2005). In doing so, we view all evidence in the light

most favorable to the government, ultimately determining “whether the evidence

and all reasonable inferences drawn therefrom could allow a reasonable jury to

find [defendant] guilty beyond a reasonable doubt.” Id.

A. Sufficiency of Evidence of Possession of Gun

Williams argues that his very inebriated condition, combined with evidence

suggesting that Miller passed the gun to him at the last minute, renders it

impossible for him to have “knowingly” possessed the gun. We disagree. “Being

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a felon in possession of a firearm is a general intent crime. ‘Voluntary

intoxication is a defense to a crime requiring proof of specific intent, but not to a

crime requiring only proof of general intent.’” United States v. Klein, 13 F.3d

1182, 1183 (8th Cir. 1994) (quoting United States v. Oakie, 12 F.3d 1436, 1442

(8th Cir. 1993)); see also United States v. Brown, 367 F.3d 549, 556 (6th Cir.

2004); United States v. Bennett, 975 F.2d 305, 308 (6th Cir. 1992); United States

v. Williams, 892 F.2d 296, 303 (3d Cir. 1989). 6 Thus, despite his inebriated state,

Williams was still capable of having the general intent necessary to support a

§ 922(g) conviction.

Furthermore, a conviction for being a felon in possession of a firearm under

§ 922(g) does not require evidence of a lengthy possession: “[E]ven if a felon

held a firearm for a mere second or two, unless that felon truly did not know that

what he possessed was a firearm or there was some recognized legal justification

for his holding the firearm, § 922(g) will still impose criminal liability.” United

States v. Adkins, 196 F.3d 1112, 1115 (10th Cir. 1999). There was sufficient

evidence that Williams knew he possessed the gun, even if briefly. Detective

Salcida testified that Williams told him that Miller had been showing the gun

6
The only case from our circuit holding that voluntary intoxication is not a
defense to § 922(g) is an unpublished decision, which we do not normally cite.
United States v. Knight, No. 94-1488, 1995 WL 511139, at **1 (10th Cir. Aug.
30, 1995). We have, however, stated on several previous occasions that voluntary
intoxication is not a defense to general intent crimes. See, e.g., United States v.
Hatatley, 130 F.3d 1399, 1405 (10th Cir. 1997).

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around, that Miller had slid the gun towards Williams but that Williams did not

want the gun and tried to slide it back. The officers’ descriptions of Williams’

furtive movements under the table support that testimony. Although Williams

claimed he did not know the gun was in his pocket, there was evidence that he

was aware of the gun and of Miller’s attempts to push it on to him. There was

accordingly sufficient evidence from which the jury could conclude that Williams

knowingly possessed the gun found in his pocket.

B. “In or Affecting Commerce”

Section 922(g) requires that the firearm be possessed “in or affecting

commerce.” 18 U.S.C. § 922(g). At trial, Gary Miller, a firearms examiner with

the Sedgwick County Regional Forensic Science Center, testified that, as a

marking on the gun indicated, the gun had been manufactured in Industry,

California. R. Vol. III at 245-46. Williams concedes that the Supreme Court held

in Scarborough v. United States, 431 U.S. 563 (1977), that “the interstate

commerce nexus requirement of the possession offense [is] satisfied by proof that

the firearm [defendant] possessed had previously traveled in interstate

commerce.” Id. at 566-67; see also United States v. Campbell, 372 F.3d 1179,

1182 (10th Cir. 2004). Proof that the gun was manufactured in California and

possessed by Williams in Kansas is sufficient to establish the nexus with

interstate commerce. See United States v. Gourley, 835 F.2d 249, 251 (10th Cir.

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1987) (holding that expert testimony “that the gun in question was manufactured

in Spain[] [and evidence that] [t]he gun itself was marked ‘Made in Spain’ . . .

was sufficient to show that the firearm was ‘in or affecting commerce.’”).

III. Fleeting Possession Instruction

Williams argues the district court erred in refusing to give his requested

“theory of defense” instruction on “fleeting possession” of the firearm. “‘A

criminal defendant is entitled to an instruction on his theory of defense provided

that theory is supported by some evidence and the law.’” United States v. Alcorn,

329 F.3d 759, 767 (10th Cir. 2003) (quoting United States v. Haney, 318 F.3d

1161, 1163 (10th Cir. 2003) (en banc)). Such an instruction is not required,

however, “‘if it would simply give the jury a clearer understanding of the issues.’”

Id. (quoting United States v. Wolny, 133 F.3d 758, 765 (10th Cir. 1998)).

Furthermore, a theory of defense instruction is “‘required only if, without the

instruction, the district court’s instructions were erroneous or inadequate.’” Id.

(quoting Wolny, 133 F.3d at 765). “‘We review de novo whether a district court

committed reversible error in failing to submit a requested theory of defense

instruction.’” Id. at 765 (quoting United States v. Bindley, 157 F.3d 1235, 1241

(10th Cir. 1998)). 7

7
We note that some of our cases have articulated a de novo standard for the
(continued...)

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 Williams proposed the following instruction on fleeting possession:

“Momentary, transitory, or temporary control of a thing, without criminal intent, is

not possession. Mere proximity to a thing is not possession.” Defendant’s

Proposed Jury Instr. No. 4, R. Vol. I, tab 34 at 5. He also proposed a supplemental

jury instruction containing the above language, as well as the following: “A jury

must acquit a defendant charged with possession of contraband when evidence

demonstrates not only that the defendant merely momentarily possessed

7
(...continued)
review of the propriety of a district court’s failure to submit a theory of defense
instruction, see, e.g., Bindley, 157 F.3d at 1241 (“We review de novo whether a
district court committed reversible error in failing to submit a requested theory of
defense instruction.”), while other cases have articulated an abuse of discretion
standard. See, e.g., Adkins, 196 F.3d at 1116 (holding that the “district court did
not abuse its discretion in failing to give the fleeting possession instruction.”).
However, both standards play a role in our review of the propriety of a theory of
defense instruction, as explained in United States v. Wolny, 133 F.3d 758 (10th
Cir. 1998):

We review the instructions de novo to determine whether, as a whole,
they adequately apprised the jury of the issues and the governing
law. The government suggests that we should review [the failure to
give a theory of defense instruction] for abuse of discretion. It is
true that we review a district court’s refusal to submit a requested
instruction to the jury for abuse of discretion. However, the ultimate
standard of review is de novo – to determine, as explained above,
whether the instructions as a whole adequately apprised the jury of
the issues and the governing law. “Discretion” comes into play in
that the district judge has substantial discretion wording the
instructions, as long as they adequately present the law and the
issues.

Id. at 765 (internal quotations and citations omitted).

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contraband, but also that the defendant either lacked knowledge that he possessed

contraband or had a legally justifiable reason to possess it temporarily.”

Defendant’s Proposed Supp. Jury Instr. No. 1, id., tab 35 at 3. The court refused

to give either instruction.

We have previously considered the “fleeting possession” defense in the

context of a § 922(g) conviction:

[A] jury must acquit a defendant charged with possession of
contraband when the evidence demonstrates not only that the
defendant merely momentarily possessed contraband, but also that the
defendant either lacked knowledge that he possessed contraband or
had a legally justifiable reason to possess it temporarily. . . .
Thus, even if a felon held a firearm for a mere second or two,
unless that felon truly did not know that what he possessed was a
firearm or there was some recognized legal justification for his
holding the firearm, § 922(g) will still impose criminal liability. If,
however, a felon who momentarily possessed a firearm genuinely
lacked knowledge that he possessed a firearm or had a legally
justifiable reason for possessing it, the fleeting possession theory
would apply because the government would have failed in its burden
of proving intent. Therefore, the court need only give a fleeting
possession instruction when the evidence at trial supports a possible
finding that the defendant only momentarily possessed the
contraband, and in so doing, lacked either knowledge he possessed
contraband or criminal intent to possess it.

Adkins, 196 F.3d at 1115 (emphasis added). We agree with the government and

the district court that there is insufficient evidence to support “a possible finding

that [Williams] only momentarily possessed the [firearm], and . . . lacked either

knowledge he possessed [the firearm] or criminal intent to possess it.” Rather,

while the evidence suggests Miller may have passed the gun to Williams at the last

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moment prior to both men being searched, as indicated above, there is ample

evidence that Williams knew he had the gun, and, in fact, tried to hide that fact. 8

See United States v. Grissom, 44 F.3d 1507, 1513 (10th Cir. 1995) (noting case

where court held that theory of defense instruction properly refused when it “was

essentially a recounting of the facts as seen through the rose-colored glasses of the

defense . . . .” (quoting United States v. Barham, 595 F.2d 231, 244 (5th Cir.

1979))). The court did not err in refusing to give Williams’ “theory of defense”

instruction.

IV. Supplemental Instruction on Knowing Possession

During jury deliberations, the jury asked the court the following question:

“Restate last information on the influence of alcohol and its effect on our

decision.” R. Vol. I, tab 40. The court responded as follows: “With respect to

Mr. Williams’[] alleged intoxication, if Mr. Williams was capable of any

conscious act at the time that he was sitting there, then he can be found to have

done something knowingly. If he was totally oblivious to the point of being

unconscious, then he can’t act knowingly. It’s going to be up to you to read and

go through these instructions and to determine whether Mr. Williams acted

knowingly or not, given all the facts and circumstances surrounding this incident.”

8
See notes 2 & 3, supra.

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Id. Williams argues that the court’s response to the jury’s inquiry “relieved [the

government] of proving the element of ‘knowing possession’ by the higher

standard of beyond a reasonable doubt when the court equated a ‘knowing act’ to

one being conscious, and being incapable of acting knowingly if they are

unconscious.” Appellant’s Br. at 23.

“The submission of supplemental jury instructions after the jury has retired

is a matter committed to the trial court’s discretion.” United States v. Arias-

Santos, 39 F.3d 1070, 1075 (10th Cir. 1994). Of course, “[w]e review the jury

instructions as a whole to determine whether they correctly state the governing law

and provide an ample understanding of the issues and the applicable standards.”

Id. at 1076.

We hold that the district court did not abuse its discretion in giving the

supplemental instruction. As the government argues, and as we have already held,

voluntary intoxication is not a defense to a general intent crime like being a felon-

in-possession under § 922(g). See Klein, 13 F.3d at 1183; Brown, 367 F.3d at

556; Bennett, 975 F.2d at 308; Williams, 892 F.2d at 303. Accordingly,

intoxication is only relevant as it bears upon Williams’ ability to act knowingly, as

required by the statute. Thus, the court simply explained that intoxication to the

point of unconsciousness would make it impossible for Williams to act knowingly.

The court referred the jury to all the instructions given, which in turn set forth the

elements required for the jury to find Williams guilty, including the requirement

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that the government prove beyond a reasonable doubt that Williams knowingly

possessed the firearm. The instructions as a whole correctly set forth the law, and

we perceive no abuse of discretion in the court’s response to the jury’s request for

clarification regarding Williams’ use of alcohol.

V. “In or Affecting Commerce” Requirement

Williams argues that “mere movement of the firearm from one state to

another at some undetermined time in the past does not constitute a ‘substantial’

effect on interstate commerce to invoke the Commerce Clause powers of Congress

under the second prong of 18 U.S.C. § 922(g) (mere possession ‘in or affecting

commerce’), where the regulated activity is non-economic intrastate conduct[.]”

Appellant’s Br. at 24. Williams concedes that this argument is foreclosed by our

decisions in United States v. Brown, 314 F.3d 1216 (10th Cir. 2003), United States

v. Bayles, 310 F.3d 1302 (10th Cir. 2002), and United States v. Dorris, 236 F.3d

582 (10th Cir. 2000). We therefore do not address it further.

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VI. Enhancement under ACCA

The district court sentenced Williams as an armed career criminal under 18

U.S.C. § 924(e) because of three prior violent felonies. 9 Williams argues that

sentencing him as an armed career criminal, based upon judicial findings as to the

existence of his prior violent felonies by a standard less than beyond a reasonable

doubt, violates his rights under Blakely v. Washington, 124 S. Ct. 2531 (2004),

United States Booker, 125 S. Ct. 738 (2005), and the Double Jeopardy Clause. We

disagree. 10

We recently addressed the question of whether Booker, Blakely, and the

Supreme Court’s most recent decision involving the use of prior convictions at

The government actually presented evidence of four prior violent felonies:
9

a 1971 conviction for first degree robbery; a 1973 conviction for second degree
murder; a 1984 conviction for aggravated assault, battery and robbery, felony
theft and unlawful possession of a firearm; and a 1993 conviction for conspiracy
to commit bank robbery.

We address this issue under our normal standard of review because
10

Williams preserved the issue by stating at sentencing that “I think that an
objection should be made or a record be made just on that point just in case the
Supreme Court would revisit the sentencing or the prior predicate issue, whether
or not that does have to be charged and proven beyond a reasonable doubt.” R.
Vol. III at 398-99. Although Williams was sentenced prior to the Supreme
Court’s decisions in Blakely and Booker, which applied the holding of Apprendi
v. New Jersey, 530 U.S. 466 (2000), to the federal sentencing guidelines, such
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,” Booker, 125 S. Ct. at 756, he preserved his right to
challenge, albeit unsuccessfully, the use of his prior convictions to enhance his
sentence.

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sentencing, Shepard v. United States, No. 03-9168, 544 U.S. ___ , 2005 WL

516494 (Mar. 7, 2005), have overruled our prior cases holding that the “fact” of a

prior conviction under § 924(e) need not be charged in the indictment and proven

to a jury beyond a reasonable doubt. We held in United States v. Moore, No. 04-

8078, 2005 WL 668813 (10th Cir. Mar. 23, 2005), that they have not. Thus, it

remains the case that, for purposes of sentencing under the armed career criminal

provisions of § 924(e), “the government need not charge the ‘fact’ of a prior

conviction in an indictment and submit it to a jury.” Id. at *3. Additionally, the

Double Jeopardy Clause is not implicated.

VII. Refusal to Depart Downward

At sentencing, both the court and Williams raised grounds for departing

downward from the otherwise applicable guideline sentencing range. The court

considered a downward departure based on “diminished capacity,” R. Vol. III at

360, and Williams argued for a downward departure on the ground that the

offenses that made him an armed career criminal were very old, id. at 365, and that

he was “less culpable” and played a “minor role” in the offense, id. at 364. The

court ultimately abandoned the “diminished capacity” basis for a downward

departure, and denied Williams’ motion for a downward departure, finding that it

“[didn’t] have a basis for a departure.” Id. at 403.

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 The court did, however, indicate its displeasure and frustration with the

severity of the sentence it felt obligated to impose upon Williams:

This really is one of the most difficult and saddest cases that I have
ever had in front of me, because I think that the sentence I’m about to
impose is so grossly out of proportion to the offense conduct here that
it just smacks of something that certainly isn’t justice. . . . [W]hile
these can’t be factors to take into account, I’m looking at a guy whose
[sic] 52 or 53 years old. Certainly he’s responsible for his past–I
mean, it follows him around wherever he goes–but here’s a guy who
was drunk in a restaurant and had a gun literally thrust at him, and he
put it in his pocket, and he ends up getting shot, and I wonder who the
real victim in this case is. I mean, I have got to tell you that if there’s
anybody that’s coming out of this thing being victimized–and,
admittedly, through some conduct of his own, he shouldn’t have been
drunk; he shouldn’t have put the gun in his pocket. But, on the other
hand, if it hadn’t been thrust at him that night during a fairly excited
period of time, he wouldn’t be sitting here today either. And that’s
worth 210 months in the penitentiary? Good lord, folks! What have
we come to here? I’m sorry, but, you know, I really don’t have
anyplace to go with this. Mr. Williams, you’re here because of what
you did. I’m doing what I am doing here today not because I’m
happy about it. As a matter of fact, I’m disgusted with the sentence
that I have to give to you here today. But that’s not [the
prosecution’s]–I mean, they didn’t write the guidelines. They didn’t
write the laws. We have Congress to thank for this, I guess.

You know, my understanding was that the whole purpose of
these guidelines when they were instituted was bring some sense of
uniformity to the sentencing process, to keep somebody in one
location from getting a sentence very different for the same crime
than people in another location. I think if the guidelines had given us
something to use as a starting point that maybe I would feel a little
better about this process, because I could go somewhere with it. Mr.
Williams, if it was up to me I would lock you up for five years
because you had no business being where you were, doing what you
were doing that night. But I think five years for this would be more
than plenty. As it is, 210 months. What’s that amount to? It’s 15, 16,
about 17 years that you’re going to get for sitting in a restaurant and
putting a gun in your pocket that a guy shoved at you while you were

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 drunk. I’m not excusing you for what you did, but I think this
punishment is gross; I think it’s immoral.

With that, Mr. Williams, I don’t have a basis for a departure.

Id. at 401-03. The court then imposed a sentence of 210 months, at the bottom of

the Guideline range.

As our prior analysis indicates, this case presents no Sixth Amendment error

under Booker, inasmuch as the only judicial fact-finding Williams challenges is

the court’s findings about Williams’ prior convictions, which, as we have

explained, are not subject to the Blakely/Booker rule about judicial fact-finding.

However, the district court did sentence Williams under the erroneous belief that

the Guidelines were mandatory, thus committing “non-constitutional Booker

error.” Because this issue was not raised below, we review it for plain error only.

See Fed. R. Crim. P. 52(b); Booker, 125 S. Ct. at 769 (noting that the Court

“expect[s] reviewing courts to . . . determin[e] . . . whether the issue was raised

below and whether it fails the ‘plain error’ test”). “‘Plain error occurs when there

is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.’” United States v. Gonzalez-Huerta, No. 04-2045, 2005 WL 807008,

at *3 (10th Cir. Apr. 8, 2005) (en banc) (quoting United States v. Burbage, 365

F.3d 1174, 1180 (10th Cir.) (quotation omitted), cert. denied, 125 S. Ct. 510

(2004)). The first two prongs are met here, as Booker makes clear that the

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mandatory application of the Guidelines is error and that error is now plain.

Gonzalez-Huerta, 2005 WL 807008, at *3; see also Johnson v. United States, 520

U.S. 461, 468 (1997). We therefore consider whether Williams can satisfy both

the third and fourth prongs of plain-error review.

To satisfy the third prong of plain-error review—showing that the error

affects substantial rights—“usually means that the error must have affected the

outcome of the district court proceedings.” United States v. Cotton, 535 U.S. 625,

632 (2002) (quotation omitted); see also United States v. Olano, 507 U.S. 725, 734

(1993). Williams bears the burden of proving the error affected his substantial

rights. Gonzalez-Huerta, 2005 WL 807008, at *3; see also United States v. Vonn,

535 U.S. 55, 62-63 (2002). Thus, to satisfy the third prong of plain-error review,

Williams must show “a reasonable probability that, but for the error claimed, the

result of the proceeding would have been different.” United States v. Dominguez

Benitez, 542 U.S. 74, 124 S. Ct. 2333, 2339 (2004) (alteration and quotation

omitted). To obtain relief, however, Williams must also satisfy the fourth prong of

plain-error review—that is, he must demonstrate that the error is “particularly

egregious” and that our failure to notice it would result in a “miscarriage of

justice.” United States v. Gilkey, 118 F.3d 702, 704 (10th Cir. 1997); see also

Olano, 507 U.S. at 736.

We hold that, in the unique circumstances of this case, and regardless of

factors which are developed for the application of plain error post-Booker,

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Williams has satisfied the third and fourth prongs of plain-error review, such that

we must notice the error and remand this case for resentencing at or above the

statutory minimum. See United States v. Trujillo-Terrazas, No. 04-2075, 2005 WL

880896, at **3-5 (10th Cir. Apr. 13, 2005) (finding that the third and fourth

prongs for establishing plain error were satisfied). While the standard for meeting

the fourth prong is “demanding,” Gonzalez-Huerta, 2005 WL 807008, at *7, we

have acknowledged that, “depend[ing] on the facts of the particular case,” it can

be met. Id. We conclude that this is such a case.

CONCLUSION

For the foregoing reasons, Williams’ conviction is AFFIRMED, his sentence

is VACATED and REMANDED for resentencing.

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No. 04-3175, United States v. Williams

MURPHY, Circuit Judge, concurring in part and dissenting in part.

I concur with the majority’s decision to affirm Williams’ conviction. I

respectfully dissent, however, from the conclusion that this case should be remanded

for resentencing pursuant to United States v. Booker, 125 S. Ct. 738 (2005).

Williams did not raise the issue of the constitutionality of the United States

Sentencing Guidelines in the district court and cannot establish that the court

committed plain error. I would therefore affirm Williams’ sentence.

To establish plain error, Williams must demonstrate (1) error, (2) that is plain,

and (3) that affected his substantial rights. United States v. Cotton, 535 U.S. 625,

631 (2002). If the error meets all these conditions, this court may exercise discretion

to correct the error if it would seriously affect the fairness, integrity, or public

reputation of judicial proceedings to let the error stand. Id. at 631-32. I agree with

the majority that the first two prongs of the plain-error test are satisfied in this case.

See United States v. Gonzalez-Huerta, No. 04-2045, — F.3d —, 2005 WL 807008, at

*3 (10th Cir. Apr. 8, 2005) (en banc). Furthermore, the district court’s statements at

sentencing indicate that it would almost certainly have given Williams a lower

sentence under an advisory Guidelines system. This is sufficient to satisfy the third

prong of the plain-error test because it satisfies Williams’ burden of showing “a

reasonable probability that, but for the error claimed, the result of the proceeding
would have been different.” United States v. Dominguez Benitez, 124 S. Ct. 2333,

2339 (2004).

I disagree with the conclusion of the majority, however, that Williams can

satisfy the “fairness, integrity, or public reputation of judicial proceedings” portion

of the plain-error test (the so-called “fourth prong” of the test). This court will

exercise its discretion to notice plain error only when the error is “particularly

egregious” and failure to notice the error would produce “a miscarriage of justice.”

United States v. Gilkey, 118 F.3d 702, 704 (10th Cir. 1997) (quotation omitted). The

defendant has the burden of establishing that the fourth prong is satisfied. Gonzalez-

Huerta, 2005 WL 807008, at *7. In United States v. Trujillo-Terrazas, this court

recognized that most defendants in non-constitutional Booker cases will fail to meet

this demanding requirement. No. 04-2075, — F.3d —, 2005 WL 880896, at *4 (10th

Cir. Apr. 13, 2005). The district court’s error in such a case “is not the substantive

error first recognized in Blakely and which Booker sought to eliminate–namely, that

the Sixth Amendment is violated when a judge, rather than a jury, finds facts that

mandatorily increase a defendant’s sentence.” Gonzalez-Huerta, 2005 WL 807008,

at *8. Rather, the error “is only error insofar as it runs afoul of the Court’s remedy

for the unconstitutional implications of the Guidelines.” Id.

It is for this reason that Williams cannot satisfy the fourth plain-error prong.

The majority correctly notes that the district court’s use of prior convictions to

enhance Williams’ sentence did not implicate the Sixth Amendment and that

-2-
Williams’ sentence was therefore not unconstitutional. In fact, the sentence imposed

by the judge was perfectly proper at the time of sentencing and did not become error

in any sense until after the Supreme Court issued its remedial holding in Booker.

Williams can therefore claim he suffered error at sentencing only because the

Supreme Court chose to remedy a constitutional problem in an entirely different

class of cases by making the Guidelines advisory in all cases. See id. (noting “[t]he

fortuity of the Court’s choice to excise 18 U.S.C. § 3553(b)(1), instead of a remedy

more directly related to the underlying constitutional problem”). As the Trujillo-

Terrazas panel noted, “a non-constitutional Booker error is ‘error’ at all only as the

serendipitous consequence of the severability analysis the Supreme Court employed

to correct the constitutional infirmity created by the combination of judicial

factfinding and mandatory application of the Guidelines.” Trujillo-Terrazas, 2005

WL 880896, at *4.

Although the court in Trujillo-Terrazas recognized the difficulty of satisfying

the fourth plain-error prong in cases of non-constitutional Booker error, the court did

conclude that the test was satisfied in that case. Id. at *5. The defendant in Trujillo-

Terrazas received a sixteen-level enhancement to his base offense level based on a

prior conviction for arson. Id. at *1. The arson conviction resulted from the

defendant’s act of tossing a lighted match through a car window and thereby causing

$35 in damage. Id. The court concluded that the fourth plain-error prong was

satisfied because the “comparatively innocuous” nature of the prior conviction

-3-
presented a compelling case that a significant departure from the Guidelines range

might be warranted. Id. at *1, *4. I question the result reached by the court in

Trujillo-Terrazas because I believe that rarely, if ever, will a defendant be able to

establish that non-Sixth Amendment Booker error constitutes a “miscarriage of

justice.”1 Regardless of the result under its particular facts, however, the case still

stands for the principle that non-Sixth Amendment Booker error can satisfy the

fourth prong of the plain-error test only in the rarest of circumstances. See id. at *4.

In contrast to the defendant in Trujillo-Terrazas, the bulk of Williams’

sentence in this case was the result of a statutory mandatory minimum. See 18

U.S.C. § 924(e) (requiring a fifteen-year mandatory minimum sentence). Because

the fifteen-year minimum sentence is unaffected by the holding in Booker, any

unfairness in this case must result from the additional thirty months above the

statutory minimum that the Guidelines mandated in this case. See United States v.

Moore, 401 F.3d 1220, 1224 (10th Cir. 2005) (holding that the fact of a prior

conviction under § 924(e) need not be proved to a jury beyond a reasonable doubt).

This extra thirty months of imprisonment, however, was based solely on Williams’

exceptionally violent criminal history, which included the violent robbery of a

grocery store and conspiracy to commit bank robbery, among other crimes. 2

The time for filing an application for rehearing in Trujillo-Terrazas has
1

not yet expired.
2
In addition, Williams’ criminal history was enhanced because the present
(continued...)

-4-
Considering that district courts post-Booker must continue to impose the fifteen-year

statutory minimum on defendants with substantially less severe criminal histories, I

do not consider it particularly unfair to let stand a thirty-month enhancement

reflecting the relative severity of Williams’ past criminal conduct. See Gonzalez-

Huerta, 2005 WL 807008, at *8 (“[T]he purpose of the Guidelines was to promote

uniformity in sentencing so as to prevent vastly divergent sentences for offenders

with similar criminal histories and offenses.”). Unquestionably, the facts giving rise

to Williams’ sentence enhancements under the Guidelines present substantially

greater justification for the enhancement than the single prior conviction in Trujillo-

Terrazas.

The district court’s expression of dissatisfaction with the length of Williams’

sentence should not change the result in this case. The district court’s comments do

demonstrate a reasonable probability of a lower sentence under an advisory

Guidelines scheme and thereby satisfy the third prong of the plain-error test. They

do not, however, demonstrate that Williams’ sentence constitutes a miscarriage of

justice. See Gonzalez-Huerta, 2005 WL 807008, at *6 (noting that this court is

“bound to treat the third and fourth prongs as independent inquiries”). As this court

recognized in Gonzalez-Huerta, “for the last eighteen years, every federal court has

(...continued)
2

offense was committed while he was on probation. Although Williams also has
convictions for second degree murder and first degree robbery, these convictions
did not factor into his criminal history category because of the age of the crimes.

-5-
given the Guidelines tacit, and in most cases explicit, approval, applying them to

tens of thousands of federal sentences.” Id. at *9. The Guidelines were perfectly

constitutional as applied to many of these cases, and this court “cannot possibly say

that all sentences imposed before Booker threatened the fairness, integrity, or public

reputation of judicial proceedings, or undermined our confidence in the outcome of

the sentence, simply because the Guidelines were mandatory.” Id. (quotation

omitted). For this reason, “[e]ven if a defendant can demonstrate that the district

court felt particular sympathy for him, and might impose a lesser sentence on

remand, failing to correct this type of plain error would not impugn the fairness,

integrity, and public reputation of judicial proceedings.” Trujillo-Terrazas, 2005

WL 880896, at *4.

This court has held that the fourth prong of the plain-error test is satisfied

“only in those rare cases in which core notions of justice are offended.” Gonzalez-

Huerta, 2005 WL 807008, at *9. I cannot agree that core notions of justice would be

offended by denying Williams a remedy adopted by the Supreme Court in response

to constitutional error in an entirely different class of cases, at least when he failed to

raise this argument in front of the district court. For this reason, I respectfully

dissent.

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