Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-9-2008
USA v. Williams
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2834
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2834
UNITED STATES OF AMERICA
v.
JOMO A. WILLIAMS,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 01-cr-00490-1)
District Judge: Honorable William G. Bassler
Submitted Under Third Circuit LAR 34.1(a)
on November 29, 2007
Before: BARRY, FUENTES, Circuit Judges, and DIAMOND,1 District Judge
(Filed: January 9, 2008)
OPINION OF THE COURT
1
The Honorable Paul S. Diamond, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
FUENTES, Circuit Judge.
Appellant Jomo Williams ("Williams") appeals the order entered by the District
Court following our remand of this case for resentencing in light of the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005). Williams’ sole challenge is to
his sentence. This Court has jurisdiction over Williams’ appeal pursuant to 28 U.S.C. §
1291. For the reasons stated below, we will affirm the sentence imposed by the District
Court.
During the course of a sting operation in July of 2001, an FBI agent and a Customs
agent approached Williams, who was seated in the driver’s seat of a car at the time.
Williams opened his door, placed the car in reverse, accelerated, and proceeded to hit the
Customs agent with the car door. He then put the car in drive, accelerated, and hit the
FBI agent, who was thrown onto the car’s hood. The FBI agent managed to shoot
Williams through the windshield, but Williams continued to resist arrest, crashing the car
into two parked vehicles and then refusing to get out of the car. He was eventually
subdued and arrested by the Customs agent with the help of two off-duty police officers
who were in the vicinity.
Williams was indicted on two counts of mail fraud (related to the sting operation)
and two counts of knowingly, willingly and forcibly assaulting a federal agent using a
dangerous and deadly weapon, and inflicting bodily injury. In May of 2002, a jury found
Williams guilty on all four counts. Using a special verdict sheet, the jury concluded
beyond a reasonable doubt that Williams’ actions had inflicted bodily injury on both
2
agents, but did not find that the United States had proven beyond a reasonable doubt that
Williams had used a dangerous weapon in committing these acts.
The District Court originally sentenced Williams to 60 months on the mail fraud
counts. With respect to the assault counts, the District Court determined that a
preponderance of the evidence supported a finding that Williams had used a dangerous
weapon with the intent to cause bodily harm. As such, the District Court found that
USSG § 2A2.2 (Aggravated Assault) was the most applicable Guidelines provision, and
assigned Williams a base offense level of 15.2 The District Court further adjusted
Williams’ offense level upward four levels for use of a dangerous weapon, two levels for
inflicting bodily injury, three levels because the victims were law enforcement agents,
and two levels for the fraud counts. After these adjustments, the total offense level was
26, which corresponded to a Guidelines range of 78 to 97 months for the assault counts.
The District Court sentenced Williams to 78 months on the assault counts, to run
concurrently with the sentence on the fraud counts.
On appeal to this Court, we affirmed Williams’ conviction, but remanded for
resentencing post-Booker. The District Court then incorporated by reference its previous
findings, considered the 18 U.S.C. § 3553(a) factors, and imposed the same sentence as it
had previously. This appeal followed.
2
The District Court utilized the November 1, 2001 edition of the Guidelines
Manual.
3
Williams claims that the District Court erred when it (1) failed to cap the potential
penalty on the assault counts at three years; and (2) applied a preponderance standard to
the question of whether Williams used a dangerous weapon with intent to cause bodily
harm, which resulted in the imposition of an incorrect base offense level.
Williams’ argument that he should have been eligible for a three-year statutory
maximum on the assault counts is unpersuasive. Williams was charged with violating 18
U.S.C. § 111, which dictates that the maximum sentence for incidents of “simple assault”
is three years. See 18 U.S.C. § 111(a).3 However, 18 U.S.C. § 111(b) allows for an
enhanced penalty of up to ten years4 if the assault involves a “deadly or dangerous
weapon” or “inflicts bodily injury.” Here, the jury found beyond a reasonable doubt that
Williams’ actions had “inflicted bodily injury” on his victims; hence, the District Court
committed no Sixth Amendment violation (as the relevant fact was found by the jury),
and 18 U.S.C. § 111(b) allows Williams to be sentenced to a period of up to ten years.
As for Williams’ second argument, it is clear that Appendix A of the Guidelines
lists § 2A2.2 and § 2A2.4 as the two offense guideline sections applicable to 18 U.S.C. §
111.5 Section 2A2.4 indicates that § 2A2.2 should be employed if an “aggravated
3
At the time of Williams’ conviction, the statutory maximum for “simple assault”
pursuant to 18 U.S.C. § 111(a) was three years; the provision was amended in 2002, and
the statutory maximum is now eight years.
4
18 U.S.C. § 111(b) was also amended in 2002; the statutory maximum under this
provision is now 20 years.
5
For this reason, contrary to what Williams suggests, § 2A2.3 is not an offense
guideline section that can be applied in this case.
4
assault” took place, and Application Note 1 to § 2A2.2 defines “aggravated assault” as
follows: “a felonious assault that involved (A) a dangerous weapon with intent to cause
bodily injury (i.e. not merely to frighten) with that weapon; (B) serious bodily injury; or
(C) an intent to commit another felony.” Here, the District Court found by a
preponderance of the evidence that Williams had used a dangerous weapon (his car) with
intent to cause bodily injury, and consequently applied § 2A2.2.
Williams claims this finding was in error because a jury, not a judge, must make
any factual findings that would increase a defendant’s sentence; consequently, the
imposition of § 2A2.2 was incorrect because the jury did not find that the government had
proven Williams’ use of a dangerous weapon beyond a reasonable doubt.6 See Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000). This argument is incorrect, because Williams
ignores Apprendi’s caveat – that this standard applies only when the sentence would be
increased beyond the prescribed statutory maximum. See id. For the reasons given
above, the statutory maximum in this case is 10 years. The District Court’s decision to
apply § 2A2.2 rather than § 2A2.4 – in combination with the other enhancements –
resulted in a 78 month sentence, far below that statutory maximum.
Accordingly, we will affirm the sentence imposed on Williams by the District
Court.
6
Williams’ brief improperly states that he was acquitted of the charge that he used
a deadly weapon; this is clearly not the case.
5