United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 11, 2007 Decided June 1, 2007
No. 04-3157
UNITED STATES OF AMERICA,
APPELLEE
v.
ROBERT WILLIAMS, A/K/A ROBERT CROWDER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00136-01)
Ernest W. McIntosh, Jr., appointed by the court, argued the
cause for the appellant.
Patricia A. Heffernan, Assistant United States Attorney,
argued the cause for the appellee. Kenneth L. Wainstein, United
States Attorney at the time the brief was filed, and Roy W.
McLeese III, Assistant United States Attorney, were on brief for
the appellee.
Before: HENDERSON, RANDOLPH and KAVANAUGH, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Appellant
Robert Williams pleaded guilty to unlawful possession of a
firearm and ammunition by a person convicted of a crime
punishable by imprisonment for a term exceeding one year in
violation of 18 U.S.C. § 922(g)(1), unlawfully possessing with
intent to distribute (PWID) cocaine base in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C) and unlawfully possessing with
intent to distribute cannabis in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(D). Because Williams had been convicted of three
prior “serious drug offense[s],” the district court sentenced him
to 15 years of incarceration pursuant to 18 U.S.C. § 924(e).1
Williams now appeals his sentence, arguing that (1) the district
court erred by sentencing him pursuant to section 924(e), (2) he
received ineffective assistance of counsel when his trial counsel
failed to object to his sentence and (3) the Government breached
the plea agreement by alerting the court to his three prior
convictions. For the reasons set forth below, we reject
Williams’s arguments and affirm his sentence.
I.
On February 16, 2004, two members of the United States
Park Police observed a blue Mercury Marquis with temporary
tags exceeding the speed limit in southeast Washington, D.C.
and conducted a traffic stop.2 When one of the officers
approached the automobile to speak to the driver, he detected
1
Section 924(e)(1) provides, “[A] person who violates section
922(g) of this title and has three previous convictions . . . for . . . a
serious drug offense . . . shall be . . . imprisoned not less than fifteen
years.” 18 U.S.C. § 924(e)(1).
2
The description of Williams’s arrest is derived from the Factual
Proffer attached to Williams’s Plea Agreement. Letter from Kenneth
L. Wainstein, United States Attorney, to Mona Asiner, Counsel for
Robert Williams 2 (July 15, 2004) (Plea Agreement), reprinted in
Appellee’s Record Material (RM) at Tab A.
3
the odor of burnt marijuana emanating from the vehicle. After
requesting that the driver lower the car’s tinted windows, he
smelled fresh marijuana and discovered four additional
occupants in the vehicle, including Williams. One of the
officers removed Williams from the car and noticed a heavy
object in one of his jacket pockets. On touching Williams’s
pocket, the officer believed Williams possessed a gun. He then
searched Williams and recovered a .9mm pistol containing
seven rounds of ammunition. Williams was arrested and a
second search of his person revealed 22 ziplock bags of
marijuana and a bag containing eight pink ziplock bags of crack
cocaine.
In an indictment filed March 16, 2004, a grand jury charged
Williams with unlawful possession of a firearm and ammunition
by a person convicted of a crime punishable by imprisonment
for a term exceeding one year in violation of 18 U.S.C.
§ 922(g)(1) (Count 1); PWID cocaine base in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C) (Count 2); PWID cannabis in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (Count 3); and
using, carrying and possessing a firearm during a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(1) (Count
4). On July 15, 2004, Williams signed a plea agreement in
which he pleaded guilty to Counts 1, 2 and 3. Williams also
agreed, inter alia, to the following: (1) Count 1 carried a
maximum prison sentence of 10 years, Count 2 carried a
maximum prison sentence of 20 years and Count 3 carried a
maximum prison sentence of five years; (2) the United States
Sentencing Guidelines (U.S.S.G.) Manual would determine
Williams’s “guideline range,” Letter from Kenneth L.
Wainstein, United States Attorney, to Mona Asiner, Counsel for
Robert Williams 2 (July 15, 2004) (Plea Agreement), reprinted
in Appellee’s Record Material (RM) at Tab A; and (3) based on
his criminal history, Williams was a “career offender” subject to
“the career offender provisions of the Sentencing Guidelines,”
id. The Factual Proffer attached to the Plea Agreement stated
4
that “[Williams] had been previously convicted of the following
felony drug convictions in the District of Columbia: Unlawful
Distribution of Cocaine, in 1996, Attempted Distribution of
Cocaine in 1993, and Possession with Intent to Distribute
Cocaine in 1985.” Id. at 8. In exchange for Williams’s
cooperation, the Government agreed (1) “not [to] seek an
upward departure from the otherwise applicable guideline range
established by the Sentencing Guidelines,” id. at 2, (2) to
decrease Williams’s base offense level by three points for
acceptance of responsibility under U.S.S.G. § 3E1.1(b) and (3)
to request that the court dismiss Count 4 at the sentencing
hearing. Id. at 4.
On July 16, 2004, the district court held Williams’s plea
hearing. In explaining the Plea Agreement, defense counsel
declared, “[Williams] agrees in the plea agreement that he has
been previously convicted and the three felonies are spell [sic]
out.” Tr. 7/16/04, at 8. When asked by the district court about
the nature of the prior convictions, counsel further explained:
There are three drug felonies. Let me get out the full
papers, Your Honor . . . One is distribution of cocaine
where he was sentenced from 20 to 60 months in ’96.
The other is attempt [sic] distribution of cocaine in ’93,
two to six years, ESS, two years probation. Then there
was PWID cocaine in ’85. 20 months to five years . . .
He did the time with some in and out with revocations
and so on.
Id. at 9-10. Despite Williams’s assurance to the court that he
understood the Plea Agreement, the district court found it unfair
to Williams and rejected it, explaining, “[A] waiver of Blakely
rights, particularly by a man with a sixth grade education who
5
isn’t quite sure he can even read the plea agreement is not a
good idea.”3 Id. at 11.
The parties reconvened for entry of Williams’s guilty plea
on August 5, 2004. Defense counsel began by alerting the
district court that she had previously miscalculated Williams’s
sentence and that the correct sentence under the Guidelines
“inure[d] to the detriment of Mr. Williams.” Tr. 8/5/04, at 2-3.
Counsel explained, “[I]f the Probation Office finds that he is an
armed career criminal . . . the guideline range would be . . . an
offense level 37 minus three points for acceptance of
responsibility, which would be a 34 . . . [s]o pursuant to a plea,
he would be at 262 to 327 months.” Id. at 3 (emphasis added).
When questioned by the court about the severity of the sentence,
defense counsel responded, “I told [Williams] that I’m against
this, but he—this is what he wants to do.” Id. at 4.
Nevertheless, the judge again refused to accept Williams’s
guilty plea.
Although the court had twice expressed its dissatisfaction
with the Plea Agreement, defense counsel resubmitted it one
week later. She also recalculated the suggested sentencing
range, asserting that Williams could receive 188 to 235 months’
imprisonment. In response to questioning by the court,
Williams stated that he expected to be released from prison in a
“[l]ong time . . . [s]ay 15 years” when he is “[a]bout 60
something.” Tr. 8/11/04, at 5. This time, the court accepted his
plea.
On September 17, 2004, the United States Probation Office
issued a presentence report (PSR) for Williams. On October
3
Williams’s plea hearing occurred before the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005), which
expanded its holding in Blakely v. Washington, 542 U.S. 296 (2004),
regarding the United States Sentencing Guidelines.
6
6th, the Government objected to the PSR’s classification of
Williams as a “Career Offender,” asserting that it “appear[ed]
that [Williams] should be classified as an armed career offender
pursuant to U.S.S.G. § 4B1.4 and 18 U.S.C. 924(e)” and
therefore his “sentence would involve a mandatory minimum
sentence of 15 years of incarceration.”4 Letter from Tricia D.
Francis, Assistant United States Attorney, to Deborah Stevens
Panzer, U.S. Probation Office (Oct. 6, 2004) (Francis Letter),
reprinted in Appellant’s Appendix (AA) at Tab 7 (emphasis
added). Five days later, the probation office issued a revised
PSR categorizing Williams as an armed career offender under
18 U.S.C. § 924(e) subject to a mandatory minimum term of 15
years’ incarceration.
At Williams’s sentencing hearing on October 27, 2004, the
district court concluded that it was required under 18 U.S.C.
§ 924(e) to sentence him to a minimum of 15 years’
imprisonment. The court explained, “The plea agreement notes
that Mr. Williams’ violation of 922(g)(1) has a maximum of 10
years in prison, which is inconsistent with the armed career
criminal finding, but the plea agreement also says the guidelines
apply.” Tr. 10/27/04, at 3. Defense counsel objected, arguing:
[I]n the plea agreement it says that [Williams] would be
subject to the career offender provisions. When I got the
presentence report and I noted my particular objections,
I said I didn’t object to career offender because that’s
what was here. The original presentence report did not
have him as an armed career offender, so when it was
redone, based on the Government’s objection, it made
4
In addition, Williams objected “to the 4 level increase re:
defendant using or possessing a firearm or ammunition in connection
with any other felony offense.” Letter from Mona Asiner, Counsel for
Robert Williams, to Deborah Stevens Panzer, U.S. Probation Office
(Sept. 29, 2004), reprinted in Appellant’s Appendix (AA) at Tab 6.
7
him under the Armed Career Offender Act, which is
different than the Career Offender Act.
Id. The court ultimately sentenced Williams to 15 years’
imprisonment for being a felon in possession of a firearm, 15
years for PWID cocaine base and five years for PWID cannabis,
the terms to be served concurrently. This appeal followed.
II.
We address separately Williams’s sentencing, ineffective
assistance of counsel and plea agreement claims.
A. Sentencing Claims
The district court sentenced Williams pursuant to section
924(e) because he pleaded guilty to a violation of section 922(g)
and because, as his PSR indicated, he had been convicted of
three prior “serious drug offense[s]”—unlawful distribution of
cocaine in 1996, attempted distribution of cocaine in 19925 and
PWID cocaine in 1985. Williams argues that the court erred
regarding two of his prior convictions. Specifically, he contends
that an “attempt” crime—like his 1992 conviction of attempted
distribution of cocaine—does not constitute a “serious drug
offense” under section 924(e) and that the PSR alone cannot
establish the fact of his 1985 conviction of PWID cocaine.
Because Williams failed to raise this argument in the district
court, we review his claims for plain error only. See Fed. R.
Crim. P. 52(b) (“A plain error that affects substantial rights may
be considered even though it was not brought to the court’s
attention.”); see also United States v. Washington, 115 F.3d
5
Although the Factual Proffer recited that Williams was convicted
of “Attempted Distribution of Cocaine in 1993,” Plea Agreement,
supra, at 8, the PSR stated that his conviction occurred in 1992,
Presentence Investigation Report, Docket No.: CR-04-136-01, at 9.
We rely on the PSR.
8
1008, 1010 (D.C. Cir. 1997). Under that standard, we will
remedy a trial court error only if there is “(1) ‘error,’ (2) that is
‘plain,’ and (3) that ‘affect[s] substantial rights[]’ . . . [and] (4)
the error ‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” Johnson v. United States,
520 U.S. 461, 466-67 (1997) (quoting United States v. Olano,
507 U.S. 725, 732 (1993)). An error “affect[s] substantial
rights” if it is “prejudicial.” Olano, 507 U.S. at 734. To
establish prejudice in the sentencing context, Williams “must
show a reasonable likelihood that the sentencing court’s obvious
errors affected his sentence.” United States v. Saro, 24 F.3d
283, 288 (D.C. Cir. 1994).
We believe the district court did not err in concluding that
Williams’s 1992 attempted distribution of cocaine conviction
constitutes a “serious drug offense” under section 924(e).
Section 924(e)(2)(A)(ii) defines “serious drug offense” as “an
offense under State law, involving manufacturing, distributing,
or possessing with intent to manufacture or distribute, a
controlled substance . . . for which a maximum term of
imprisonment of ten years or more is prescribed by law.” 18
U.S.C. § 924(e)(2)(A)(ii). In United States v. Alexander, 331
F.3d 116, 130 (D.C. Cir. 2003), we held that the defendant’s
prior conviction of attempted possession with intent to distribute
a controlled substance qualified as a “serious drug offense.” In
so holding, we observed that the Congress did “not speak in
specifics” in defining “serious drug offense” but instead
included “an entire class of state offenses ‘involving’ certain
activities, namely ‘manufacturing, distributing, or possessing
with intent to manufacture or distribute’ a controlled substance.”
Id. at 131 (quoting 18 U.S.C. § 924(e)(2)(A)(ii)). Because we
agreed with the Second Circuit’s statement in United States v.
King, 325 F.3d 110 (2d Cir. 2003), that the term “involving” is
expansive, we concluded that the defendant’s prior attempt
conviction “‘involv[ed]’ possession with intent to distribute a
controlled substance.” Alexander, 331 F.3d at 131. Similarly,
9
Williams’s 1992 attempted distribution of cocaine conviction
“involv[ed]” distribution of cocaine and thus constitutes a
“serious drug offense” under section 924(e).6 Id.
Moreover, we need not determine whether the district court
erred by relying exclusively on the PSR to establish Williams’s
1985 conviction of PWID cocaine because Williams has not
demonstrated “a reasonable likelihood” that his sentence would
have been reduced had the court required more to establish the
fact of the conviction. See Saro, 24 F.3d at 288 (“[T]he
defendant must show a reasonable likelihood that the sentencing
court’s obvious errors affected his sentence.”). Indeed, the
record does not indicate in any way that the 1985 conviction had
ever been vacated and Williams makes no such assertion on
appeal. Moreover, he admitted the 1985 conviction both at his
July 16, 2004 plea hearing, see Tr. 7/16/04, at 9-10, and in the
Factual Proffer attached to the Plea Agreement, Plea Agreement,
supra, at 8. Because Williams had been convicted of three prior
“serious drug offense[s],” section 924(e) required the district
court to sentence him to a mandatory minimum of 15 years’
imprisonment. See 18 U.S.C. § 924(e)(1) (providing that person
convicted under section 922(g) with three prior serious drug
6
Williams fails even to mention Alexander in his brief and the
decisions of this court which he does cite are inapposite. Both United
States v. Price, 990 F.2d 1367, 1368 (D.C. Cir. 1993), and United
States v. Seals, 130 F.3d 451, 463 (D.C. Cir. 1997), examine the
definition of “controlled substance offense” under U.S.S.G. §§ 4B1.1
and 4B1.2 (Career Offender provisions). As Application Note 1 to
U.S.S.G. § 4B1.4—the “Armed Career Criminal” sentencing guideline
that applies if a defendant is subject to section 924(e)—states, “[T]he
definitions of ‘violent felony’ and ‘serious drug offense’ in 18 U.S.C.
§ 924(e)(2) are not identical to the definitions of ‘crime of violence’
and ‘controlled substance offense’ used in § 4B1.1 (Career Offender).”
U.S. Sentencing Guidelines Manual § 4B1.4 app. n.1.
10
offenses “shall be . . . imprisoned not less than fifteen years”
(emphasis added)).
B. Ineffective Assistance of Counsel Claims
When a criminal defendant raises an ineffective assistance
of trial counsel claim on direct appeal, “this court’s general
practice is to remand the claim for an evidentiary hearing unless
the trial record alone conclusively shows that the defendant
either is or is not entitled to relief.” United States v. Moore, 394
F.3d 925, 931 (D.C. Cir. 2005) (quoting United States v.
Rashad, 331 F.3d 908, 909-10 (D.C. Cir. 2003)). Williams
argues that he is entitled to an evidentiary hearing to determine
whether his trial counsel’s failure to object to his sentence
imposed under section 924(e) and her failure to verify his 1985
PWID cocaine conviction constituted ineffective assistance.
To prevail on an ineffective assistance of counsel claim, a
defendant must demonstrate both deficient performance and
prejudice to him. Strickland v. Washington, 466 U.S. 668, 687
(1984). Counsel’s performance is deficient if she “made errors
so serious that [she] was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Moore,
394 F.3d at 931 (quoting Strickland, 466 U.S. at 687). That is,
counsel must provide “reasonably effective assistance.”
Strickland, 466 U.S. at 687. Prejudice occurs if there is a
“reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Moore, 394 F.3d at 931 (quoting Strickland, 466 U.S. at 694).
“[R]easonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.
The record conclusively demonstrates that Williams’s trial
counsel did not render ineffective assistance. First, as noted
earlier, our decision in Alexander makes clear that Williams’s
attempted distribution of cocaine conviction qualifies as a
“serious drug offense” under section 924(e). See 331 F.3d at
11
130. Thus, trial counsel’s failure to object to the district court’s
consideration of the attempt conviction in sentencing Williams
was not unreasonable. See Strickland, 466 U.S. at 687. We
need not address whether Williams’s trial counsel acted
unreasonably in failing to independently investigate the fact of
his 1985 conviction because Williams cannot demonstrate
prejudice. Williams twice admitted his 1985 conviction in
district court and he does not argue before us that a more
thorough investigation by counsel would have revealed that the
conviction either did not occur or had been vacated. We “ha[ve]
never held that any claim of ineffective assistance of counsel, no
matter how conclusory or meritless, automatically entitles a
party to an evidentiary remand,” United States v. Poston, 902
F.2d 90, 99 n.9 (D.C. Cir. 1990) (emphasis in original), and,
accordingly, we need not remand here.
C. Plea Agreement Claim
Williams’s Plea Agreement states that the Government “will
not seek an upward departure from the otherwise applicable
guideline range established by the Sentencing Guidelines” and
that “[Williams] will be subject to the career offender provisions
of the Sentencing Guidelines.” Plea Agreement, supra, at 2.
Williams argues that the Government breached the Plea
Agreement by informing the probation office that “it appears
that [Williams] should be classified as an armed career offender
pursuant to U.S.S.G. § 4B1.4 and 18 U.S.C. 924(e).” Francis
Letter, supra (emphasis added). In other words, Williams
contends that the Government agreed to recommend a sentence
under U.S.S.G. § 4B1.1, the “Career Offender” guideline,7 and
7
Section 4B1.1(a) provides:
A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time the
defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a
12
breached that agreement by asserting that Williams should
instead be sentenced pursuant to section 924(e) and U.S.S.G.
§ 4B1.4, the “Armed Career Criminal” guideline.8
We need not address the Government’s alleged breach of the
Plea Agreement in view of our holding that the district court was
statutorily required to sentence Williams to a mandatory
minimum of 15 years’ imprisonment.9 That is, Williams
pleaded guilty to a violation of section 922(g) and he had been
convicted of three prior “serious drug offense[s].” See 18
U.S.C. § 924(e). Consequently, a remand to the district court for
resentencing would not result in a sentence more favorable to
Williams.10
For the foregoing reasons, the judgment of the district court
is affirmed.
So ordered.
felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a).
8
Section 4B1.4 applies to “[a] defendant who is subject to an
enhanced sentence under the provisions of 18 U.S.C. § 924(e).”
U.S.S.G. § 4B1.4(a).
9
That said, the Government could no more have agreed to deviate
from the statutorily-required sentence than could the district court.
10
Williams’s request that we remand for an evidentiary hearing to
determine whether a breach occurred, see Appellant’s Br. at 22, is also
denied.