United States v. Williams

United States Court of Appeals
For the First Circuit

No. 09-1811

UNITED STATES OF AMERICA,

Appellee,

v.

DURRELL WILLIAMS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.

Paula D. Silsby, United States Attorney and Renée Bunker,
Assistant United States Attorney, on brief for appellee.
Sarah A. Churchill and Strike, Goodwin & O'Brien on brief for
appellant.

December 28, 2010
 HOWARD, Circuit Judge. A jury convicted Durrell Williams

on numerous drug and gun charges. The district court sentenced him

to twenty-five years in prison. On appeal Williams contends that

his court-appointed attorney was given inadequate time to prepare

for trial and that the government's evidence was insufficient to

convict him. He also asserts that his sentence was unreasonable and

suffered from computational errors. After careful review, we affirm

in all respects.

I. BACKGROUND1

An inter-agency sting nabbed Williams for heading a drug

and gun conspiracy in Portland, Maine. We briefly describe the

scheme. Originally from Queens, a borough of New York City,

Williams moved to Portland at some point in 2004 or 2005 to sell

crack cocaine. There he met Maine native Joshua Hebert and other

middlemen who facilitated distribution. Williams also sold directly

to users, sometimes from his apartment, sometimes in a car driven

by his then-girlfriend Sherina Howard, with whom he lived, and from

time to time on his bicycle. He used part of his drug proceeds to

purchase handguns. His main gun supplier was Wade Collett, a

firearms-dealer licensee of Red Wheel Enterprises in Falmouth,

Maine. Because Williams was a felon, he employed intermediaries as

straw purchasers to buy guns on his behalf. At times, Hebert would

1
We review the facts in the light most favorable to the jury's
verdict. United States v. Gonzalez-Ramirez, 561 F.3d 22, 24 (1st
Cir. 2009).

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purchase a gun from Collett, create a false bill of sale that

identified someone other than Williams, and then convey the gun to

Williams instead of the individual identified on the bill of sale.

At other times, Williams would accompany another associate to

Collett's gun shop. There Williams would tell the individual which

gun to buy, that person would ask to "borrow" money from Williams,

and Collett would process the transaction knowing the gun was for

Williams. During the course of the conspiracy, Williams traveled

to Queens numerous times in order to "re-up" (i.e., obtain more

crack) and sell the guns he had acquired in Maine.

In June 2008, Williams and Collett were indicted on

several gun charges in federal district court in Maine. Collett

entered into a plea agreement, but Williams did not. The government

later filed a superceding indictment, again charging Williams with

the gun violations, as well as charging Williams and Hebert with a

drug-trafficking conspiracy involving fifty or more grams of cocaine

base. Like Collett, Hebert agreed to plead guilty, but a second

round of plea negotiations with Williams failed. Williams's trial

was scheduled to begin on January 28, 2009, but was later

rescheduled to February 17 due to defense counsel's illness. In

mid-January, it became clear that counsel's illness would prevent

him from continuing to represent Williams. The court, with

Williams's consent, appointed another lawyer from the same firm.

Although new counsel Sarah Churchill had already met with Williams,

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she was away on a pre-scheduled vacation at the time of the

appointment. The court continued trial until February 23, 2009, so

that Churchill would have an additional week to prepare. In doing

so, however, the court admonished that "I want to get this matter

tried. [Williams has] been sitting there for some time."

On February 13, 2009, Churchill filed another motion to

continue trial. She cited the "voluminous" material the government

had produced, consisting of "six compact disks containing

approximately 700 pages of written material and two compact disks

which contain hours of recording of telephone calls," and suggested

that more time was necessary "to ensure that proper cross-

examination can occur." The court denied the motion in a paperless

order, but invited Churchill to request additional time "[s]hould

Counsel [a]pprehend during [t]rial there exists any prejudice from

this Order."

After a three-day trial, the jury convicted Williams on

all counts. The court sentenced him to 300 months on the drug

charge, to be served concurrently with lesser time he received on

the gun charges. Williams appealed.2

2
Churchill represented Williams on appeal through briefing.
Two weeks before we were to hear argument, Williams filed a
grievance against Churchill with the Maine Board of Overseers
criticizing her advocacy at trial and on appeal. The next day
Churchill moved to withdraw as counsel for Williams. We granted
Churchill's motion to withdraw, provided for the appointment of
substitute counsel, and removed the case from the oral argument
calender; at the time, however, we reserved decision on whether to
reschedule oral argument or take the case as submitted on the

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II. DISCUSSION

A. Motion to Continue Trial

Williams argues that four weeks was not enough time for

Churchill to prepare for trial in light of the materials she needed

to review. Williams also argues that additional time could have

"improved" Churchill's impeachment of some of the government's

witnesses. In particular, Williams postulates -- for the first time

on appeal -- that more time might have allowed Churchill to obtain

a record showing that Williams was incarcerated in New York from

September 2004 to May 2005 in connection with an unrelated charge.

According to Williams, if obtained that record would have

discredited "several" of the government's witnesses, all of whom (we

are told) testified that Williams was in Maine during that period.

We review the district court's denial of a motion to

continue for abuse of discretion. United States v. Mangual-

Santiago, 562 F.3d 411, 429 (1st Cir. 2009). Each case must be

evaluated on its own facts. United States v. Torres, 793 F.2d 436,

440 (1st Cir. 1986). Relevant factors in our analysis include "the

reasons contemporaneously presented in support of the request, the

amount of time needed for effective preparation, the complexity of

the case, the extent of inconvenience to others if a continuance is

granted, and the likelihood of injustice or unfair prejudice

briefs. We now determine that oral argument is unnecessary, see
Fed. R. App. P. 34(a)(2), and proceed to resolve the appeal.

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attributable to the denial of a continuance." United States v.

Rodríguez-Durán, 507 F.3d 749, 763 (1st Cir. 2007) (citing United

States v. Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995)). To show

abuse, the aggrieved party must establish that "the court exhibited

an 'unreasonable and arbitrary insistence upon expeditiousness in

the face of a justifiable request for delay.'" Id. (quoting United

States v. Rodriguez-Marrero, 390 F.3d 1, 21-22 (1st Cir. 2004)).

"Identifying prejudice from the ruling is essential." Id. (citing

Saccoccia, 58 F.3d at 770).

Williams has not shown that an abuse occurred. Attorney

Churchill moved for a continuance on the basis of a broad assertion

that the material she needed to review -- 700 pages of documents and

"hours" of recorded telephone calls -- was voluminous. Other than

volume, no specific explanation has been provided as to why those

particular materials justified additional time. On the basis of

this broad assertion alone, we are reluctant to second-guess the

district court's conclusion that four weeks was adequate, especially

in light of the court's previous continuance to accommodate her.

See, e.g., Rodríguez-Durán, 507 F.3d at 767 (denial of continuance

no abuse when counsel had about a month to review approximately 1000

pages of documents).

We note that the case against Williams was not overly

complex. Although the superceding indictment contained thirteen

counts against Williams and involved nearly forty discrete

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allegations, they all pertained to one conspiracy involving a

limited number of individuals and two related schemes (pedestrian

drug activity and gun transactions which were themselves

substantially similar). The trial was short, lasting only three

days from opening arguments to verdict. See, e.g., United States

v. Waldman, 579 F.2d 649, 653 (1st Cir. 1978) (denial of continuance

not an abuse in case involving a fifty-eight count indictment and

eight-day trial). Moreover, Churchill did not shoulder that burden

alone: a colleague, who presumably took part in trial preparation,

was present throughout trial and cross-examined about half of the

government's witnesses. Cf. United States v. Hurley, 63 F.3d 1, 16

(1st Cir. 1995) (denial of continuance no abuse in part because

counsel benefitted from work of co-defendants' counsel).

Additionally, we discern no unfair prejudice. Williams's

prejudice argument on appeal focuses on the purported existence of

a record of his incarceration that, he claims, Churchill could have

obtained if only the court had allowed the continuance. None of

this, however, was presented to the district court in the first

instance. Although sometimes prejudice might become clear through

hindsight alone, see Rodríguez-Durán, 507 F.3d at 765, this is not

one of those cases. According to the appellant's brief, Churchill

learned shortly before trial that at least one government witness

would testify that Williams was in Maine as early as 2004.

Churchill then attempted to obtain a record of Williams's

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incarceration for impeachment purposes, but that attempt failed for

reasons that remain unclear. The salient point, though, is that --

despite the court's open and express invitation to renew the motion

to continue when presented with cognizable prejudice -- counsel

never sought a continuance to obtain the record that Williams now

invokes.

In any event, we also reject the prejudice hypothesis on

its merits. In United States v. Bruck, a case involving roughly

comparable circumstances, we affirmed the denial of a continuance

to develop psychological evidence. 152 F.3d 40 (1st Cir. 1998).

Recognizing the defendant's history of psychological illness, the

district court had ordered a psychological examination, which

concluded that the defendant was competent to stand trial. Id. at

45-46. On the eve of trial, the defense sought a continuance to

obtain additional evidence showing that the defendant was insane.

Id. The court denied the continuance, and we affirmed:

Bruck has made no effort to point us to evidence
suggesting that he had a diminished capacity to form
criminal intent and/or that he was legally insane at the
time he committed his crimes. All he has done is to
emphasize that there is evidence he never obtained . . .
that might have assisted him in generating a last minute,
mens rea-related defense. This argument is plainly
insufficient for us to find an abuse of discretion on
this record . . . . In so ruling, we also note Bruck's
apparent lack of diligence in failing to secure the
missing evidence in the two and one-half years since his
trial, despite the fact that the extent to which the
moving party may have been prejudiced by the denial of a
motion to continue is one of the factors we look to in
assessing whether the lower court acted within its
discretion.

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Id. at 46-47. Accord United States v. Warshak, Nos. 08-3997, 08-

4085, 08-4087, 08-4212, 08-4429, 09-3176, 2010 WL 5071766, at *24

(6th Dec. 14, Cir. 2010) (no prejudice resulting from denial of

continuance when defendant argued that more time might have revealed

exculpatory evidence).

Similarly, here: Williams's phantom record remains

missing even today, nearly two years after his trial, and

speculation about what assistance it might have rendered to his

defense falls hopelessly short of establishing, as he must, a

likelihood of prejudice.3

The short of it is that, based on the record before us,

the district court acted well within its discretion in refusing any

further delay.

B. Motion for Acquittal

During trial, Williams moved unsuccessfully for acquittal

at the close of the evidence. See Fed. R. Crim. P. 29. On appeal,

Williams argues that two witnesses, his former girlfriend Howard and

one Ortiz, were "impeached to such a degree that no rational jury

could have believed them." For this reason, and based on other

3
We hasten to add that Williams makes too much of his
purported incarceration in any event. It was not an alibi. At
best, it could have impeached one government witness, Jose Ortiz,
who testified that Williams was in Maine as early as 2004. Several
other key government witnesses, however, testified almost uniformly
that their dealings with Williams began in mid 2005 or later, which
is after Williams claims he was released from prison.

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alleged deficiencies of the government's "various witnesses,"

Williams claims that he should have been acquitted on the drug

charge.4

We quickly dispatch this argument. "[I]ssues adverted to

in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived." United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990). "It is not enough merely to mention a

possible argument in the most skeletal way, leaving the court to do

counsel's work, create the ossature for the argument, and put flesh

on its bones." Id. Instead, "a litigant has an obligation 'to

spell out its arguments squarely and distinctly,' or else forever

hold its peace." Id. (quoting Rivera-Gomez v. de Castro, 843 F.2d

631, 635 (1st Cir. 1988)). See also Harriman v. Hancock County, No.

09-2284, 2010 WL 4923541, at *4-*5 (1st Cir. Dec. 6, 2010) (applying

Zannino and holding that underdeveloped arguments on appeal are

deemed waived).

Williams's argument here consists of a single three-

sentence paragraph. In it, he claims broadly that Ortiz and Howard

cannot be believed based on impeachment that he does not describe

in any meaningful detail. Likewise, he claims that testimony from

other witnesses, none of whom he identifies, cannot support his

conviction based on inconsistencies and other issues that he too

4
Williams does not argue that the district court erred in
denying his Rule 29 motion as to the gun charges.

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does not adequately describe. Because his skeletal argument is

plainly insufficient, we deem it waived.5

C. Sentencing

Williams challenges his sentence on several grounds. We

examine each in turn, with reference to the 2008 U.S. Sentencing

Guidelines Manual ("U.S.S.G."). See United States v. Roa-Medina,

607 F.3d 255, 257 (1st Cir. 2010) (examining sentencing challenge

based on guidelines in effect at time of sentence).

First, Williams argues that the district court

miscalculated the drug quantity attributable to him for purposes of

establishing his base offense level. According to Williams, Hebert

testified that he purchased from Williams anywhere from 3.5 to

fourteen grams of crack per week (and, on one occasion, forty grams)

over a two-month period. By Williams's estimate, that totals sixty-

eight grams.6 But the revised presentence investigation report (PSI

Report), which the district court adopted, calculated drug quantity

5
We note that if we were to reach the merits of his argument,
we would easily reject it. Reading the record in the light most
hospitable to the government, and resolving credibility issues in
favor of the verdict, we see more than enough evidence to support
the jury's determination that Williams participated in a drug-
trafficking conspiracy involving fifty or more grams of cocaine
base. See United States v. Cruz-Rodriguez, 541 F.3d 19, 26 (1st
Cir. 2008) (reciting standard of review for assessing sufficiency).
6
(3.5 grams/week * seven weeks) + (forty grams) + (3.5 grams)
= sixty-eight grams. The seven-week figure is presumably based on
the assumption that there are four weeks in each month and that the
baseline time period, from which one week is subtracted, is two
months.

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based Hebert's purchases over a three-month period. With the

additional month included, the PSI Report estimated 85.15 grams.7

This difference of 17.15 grams is significant because, if it were

subtracted from the total drug-quantity estimate (164.35 grams), the

revised estimate would fall just shy of 150 grams (147.2 grams, to

be precise). Consequently, Williams's base offense level would be

two levels lower. See U.S.S.G. § 2D1.1(c)(4).

We review a sentencing court's drug-quantity calculations

for clear error. United States v. Cintron-Echautegui, 604 F.3d 1,

6 (1st Cir. 2010). Generally, "we must honor such findings 'unless,

on the whole of the record, we form a strong, unyielding belief that

a mistake has been made.'" United States v. Platte, 577 F.3d 387,

392 (1st Cir. 2009) (quoting Cumpiano v. Banco Santander Puerto

Rico, 902 F.2d 148, 152 (1st Cir. 1990)). "The calculation of drug

quantities is not an exact science, and a sentencing court charged

with that responsibility need not be precise to the point of

pedantry. Rather, a sentencing court may make reasoned estimates

based on historical data." Id. See also United States v. Kinsella,

622 F.3d 75, 86 (1st Cir. 2010) (recognizing that a sentencing judge

"is not required to be a mathematician or to make findings with

computerized certainty").

7
(3.5 grams/week) * (4.3 weeks/month) * (three months) +
(forty grams) = 85.15 grams.

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 Under this deferential standard, we see no error in the

district court's drug-quantity calculations. True, Hebert at one

point testified that he bought crack from Williams "for a couple of

months." But during trial the government admitted bills of sale

related to firearm transactions that book-end Hebert's dealings with

Williams to about a three-month period. It was reasonable for the

court to infer that throughout that period Hebert was buying crack

from Williams in addition to selling him guns. Hebert's testimony

does not contradict that evidence in any event. While logic

dictates that two is not three, the court was free to interpret

Hebert's statement idiomatically; in that light alone, and certainly

in light of the other evidence, three months is a perfectly

justifiable construction of "a couple of months."

Second, Williams challenges a two-level increase for

possession of a firearm in connection with drug trafficking, see

U.S.S.G. § 2D1.1(b)(1), and another two-level increase for asking

his ex-girlfriend, Howard, to perjure herself before the grand jury,

see U.S.S.G. § 3B1.1(a). Williams supports these challenges with

the following blanket statement: "These findings are not supported

by the record." That declaration is not enough. We therefore deem

them waived. Zannino, 895 F.2d at 17.

Third, he argues that the court placed him in the wrong

criminal history category. According to Williams, he should have

received one, rather than two, criminal history points stemming from

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a youthful offender adjudication on a New York robbery charge, see

U.S.S.G. § 4A1.1(b), and no points at all (rather than the one point

assigned) for a New York reckless endangerment charge, see U.S.S.G.

§ 4A1.1(c). Because this would decrease his total criminal history

points to eight from ten, Williams concludes that the court should

have calculated his sentence based on a criminal history category

of IV instead of V. We see no error in either assignment of points.

Although Williams's youthful offender adjudication originally

resulted in only probation, the court correctly assigned two

criminal history points based upon the sentence imposed when that

probation was revoked. U.S.S.G. § 4A1.2(k)(1). The sentence upon

revocation was imposed the same day as a one-year sentence for drug

possession, which the court also correctly counted separately.

U.S.S.G. § 4A1.2 cmt. n.11. As to the second argument, Williams

offers no reason to disturb the court's determination that his

conviction for reckless endangerment in the second degree (which

involved fleeing in a motor vehicle from the police) entailed a

degree of culpability and recurring criminal conduct dissimilar to

mere reckless driving. U.S.S.G. § 4A1.2 cmt. n.12.

Fourth, Williams argues that his variant sentence of 300

months was substantively unreasonable based on his youth and his

previous sentences, which were far lower.8 The mandatory minimum of

8
The government does not challenge the court's sixty-month
downward variance.

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240 months, he insists, would have been more than enough to serve

the purposes of 18 U.S.C. § 3553(a). The district court enjoys wide

latitude in sentencing decisions. United States v. Rivera-Gonzalez,

No. 08-2142, 2010 WL 4905170, at *7 (1st Cir. Dec. 1, 2010).

Ultimately, "the linchpin of a reasonable sentence is a plausible

sentencing rationale and a defensible result." Id. (quoting United

States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).

We have no difficulty concluding that 300 months was a

reasonable sentence for Williams's crimes. The court stated that

this was "one of the more serious drug[-]gun offenses" it had

encountered, and that Williams's gun and drug trafficking was a

"volatile mixture" that raised serious public safety concerns. The

court also noted that Williams's suborning of perjury, which

occurred while he was incarcerated, undermined his statement during

allocution that a lesser sentence would be equally rehabilitative.

Nonetheless, the court twice recognized Williams's young age and

stated that 360 months was "perhaps, extremely high" in light of his

prior sentences, and so imposed a sentence that was sixty months

below the guideline range. We are satisfied that this sentence was

a reasonable one.

Fifth and finally, we permitted Williams to file a pro se

supplemental brief based on his request "to make an argument in his

own words to supplement the arguments already made by counsel."

Williams's pro se supplemental brief seeks a remand for resentencing

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in light of the Fair Sentencing Act of 2010, Pub. L. No. 111-220,

124 Stat. 2372, in which Congress adjusted the ratio of penalties

for crack and powder cocaine offenses.9 Among other changes,

Congress increased the amount of cocaine base a defendant must

possess in order to trigger a mandatory minimum sentence of five or

ten years. Fair Sentencing Act § 2(a)(1), 124 Stat. at 2372.

Williams does not claim that he is entitled to benefit

from the new mandatory minimum penalties, presumably because his

sentence of 300 months was well above any applicable minimum. Other

courts to consider the issue have reasoned that the statutory

changes wrought by the Fair Sentencing Act do not have retroactive

effect and thus would not benefit a defendant in Williams's

position, although that remains for now an open question in this

circuit.10

9
In addition to his sentencing argument described in text, he
appears to argue that Churchill was ineffective under Strickland v.
Washington, 466 U.S. 668 (1984), and its progeny; but that is a
claim that must first be made in the district court under 28 U.S.C.
§ 2255. See, e.g., United States v. Gonzalez-Vazquez, 219 F.3d 37,
42 (1st Cir. 2000) (reciting rule, collecting cases, and
recognizing an exception not applicable here).
10
See United States v. Reevey, No. 10-1812, 2010 WL 5078239,
at *2-*4 (3d Cir. Dec. 14, 2010) (unpublished); United States v.
Wilson, No. 10-4160, 2010 WL 4561381, at *2 (4th Cir. Nov. 12,
2010) (unpublished); United States v. Lewis, No. 09-3329, 2010 WL
4262020, at *3 (10th Cir. Oct. 29, 2010); United States v. Glover,
No. 09-1725, 2010 WL 4250060, at *2 (2d Cir. Oct. 27, 2010)
(unpublished); United States v. Brewer, 624 F.3d 900, 909 n.7 (8th
Cir. 2010) (dicta); United States v. Bell, 624 F.3d 803, 814-15
(7th Cir. 2010); United States v. Carradine, 621 F.3d 575, 580 (6th
Cir. 2010); United States v. Hall, No. 09-10216, 2010 WL 4561363,
at *3 (9th Cir. Aug. 12, 2010) (unpublished).

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 Instead, his argument seems to be that he ought to be

resentenced according to what he expects will be more favorable

forthcoming sentencing guidelines. Congress did indeed direct the

U.S. Sentencing Commission to amend its guidelines to reflect the

new crack-to-powder ratio, see Fair Sentencing Act § 8, 124 Stat.

at 2374, but Williams's request is premature at this juncture. The

Commission has not yet issued new permanent guidelines, nor has it

determined whether any new guidelines will have retroactive effect.

See U.S.S.G. § 1B1.10.(c) (not referencing emergency amendment to

U.S.S.G. § 2D1.1(c), Amend. 748 (effective Nov. 1, 2010)). If the

Commission adopts retroactive changes to the guidelines that would

benefit Williams, he is free to petition for resentencing pursuant

to 18 U.S.C. § 3582(c)(2).

Affirmed.

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