United States v. Quincy Marquice Williams

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 22, 2005
Nos. 05-12331 & 05-12571 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket Nos.
03-00096-CR-FTM-29-DNF
03-00096-CR-FTM-DNF

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

QUINCY MARQUICE WILLIAMS,
a.k.a. Q,
a.k.a. Quincy Marquis Williams,

Defendant-Appellant.

________________________

Appeals from the United States District Court
for the Middle District of Florida
_________________________
(December 22, 2005)

Before TJOFLAT, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
On December 24, 2003, Quincy Marquice Williams and the Government

executed a plea agreement that called for Williams to plead guilty to Count One of

a three count indictment, which charged him with conspiracy to possess with

intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. §

846. The plea agreement contained a provision whereby Williams explicitly

waived his right to appeal his sentence directly or collaterally on any ground

except in four situations: (1) an upward departure by the sentencing judge, (2) a

sentence above the statutory maximum, (3) a sentence in violation of the law, apart

from the United States Sentencing Guidelines (“Guidelines”), or (4) if the

Government appealed the imposed sentence. On December 31, 2003, Williams

pled guilty to Count One before a magistrate judge; on January 5, 2004, the district

court accepted the plea and adjudicated Williams guilty of the Count One offense.

On April 28, 2004, the district court sentenced him to prison for 292 months.

After the ten-day period for taking an appeal expired, Williams sought an

out-of-time appeal pursuant to 28 U.S.C. § 2255, on the ground that his attorney

denied him effective assistance of counsel by failing to file a notice of appeal. The

district court granted his motion. Record, Vol. 1 at Tab 43. In the order granting

the motion, the court, following the procedure outlined in United States v. Phillips,

225 F.3d 1198, 1201 (11th Cir. 2001), “re-sentenced” Williams to the same

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sentence it imposed on April 28. Williams thereafter lodged this appeal,

challenging both his conviction and sentence.

Williams challenges his conviction on the ground that the indictment was

insufficient to invoke the district court’s jurisdiction or to provide him with

sufficient notice that he conspired with known and unknown individuals.

Williams attacks his sentence on the grounds that the district court (1) denied him

due process of law and a Sixth Amendment right, as recognized in Blakely v.

Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), when it re-

sentenced him without notice, hearing, or presence of counsel and based on facts

beyond those he admitted, and (2) erroneously adopted the pre-sentence

investigation report’s calculations of his criminal history points which dramatically

increased his criminal history category.

We consider first Williams’s challenge to his conviction.

Generally, whether an indictment sufficiently alleges an offense is a question

of law which we review de novo. United States v. Pease, 240 F.3d 938, 942 (11th

Cir. 2001). Where, as here, the defendant challenges the sufficiency of the

indictment for the first time on appeal, “the indictment must be held sufficient

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unless it is so defective that it does not, by any reasonable construction, charge the

offense to which [the defendant] pleaded guilty.” Id. at 943.

We conclude that Count One of Williams’s indictment was sufficient

because it plainly invoked the court’s jurisdiction alleged a conspiracy to distribute

drugs, the time the conspiracy operated, and the statute the conspiracy violated.

See Pease, 240 F.3d at 943. We therefore affirm Williams’s conviction.

II.

When the district courts of this circuit conclude that an out-of-time
appeal in a criminal case is warranted as the remedy in a § 2255
proceeding, they should effect that remedy in the following way: (1)
the criminal judgment from which the out-of-time appeal is to be
permitted should be vacated; (2) the same sentence should then be
reimposed; (3) upon reimposition of that sentence, the defendant
should be advised of all the rights associated with an appeal from any
criminal sentence; and (4) the defendant should also be advised that
the time for filing a notice of appeal from that re-imposed sentence is
ten days, which is dictated by Rule 4(b)(1)(A)(i) [of the Federal Rules
of Appellate Procedure].

United States v. Phillips, 225 F.3d at 1201.

“Under the Due Process Clause, a defendant is guaranteed the right to be

present at any stage of the criminal proceeding that is critical to its outcome if his

presence would contribute to the fairness of the procedure.” United States v.

Parrish, 427 F.3d 1345, 1348 (11th Cir. 2005)(quotation omitted). A district court

that properly follows the procedure detailed in Phillips by vacating the original

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sentence, imposing the exact same sentence, and advising the defendant of the

rights and time limitations associated with the appeal, does not violate a

defendant’s rights under the Due Process Clause. Id.

The record in this case establishes that the district court – in vacating the

original sentence, re-sentencing Williams to that same sentence, and advising him

of his right to appeal – correctly followed the procedure detailed in Phillips. See

Parrish, 427 F.3d at 1348. In short, the district court did not deny Williams due

process of law.

III.

An appeal waiver is valid if knowingly and voluntarily made. We review

such waiver de novo. Pease, 240 F.3d at 942. A“[w]aiver will be enforced if the

government demonstrates either: (1) the district court specifically questioned the

defendant about the waiver during the plea colloquy, or (2) the record clearly

shows that the defendant otherwise understood the full significance of the waiver.”

United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir.), cert. denied. 125

S.Ct. 2279 (2005)(quotation omitted). A waiver of the right to appeal can cover

“difficult or debatable legal issues or even blatant error,” id., and include a waiver

of Blakely and Booker issues. United States v. Grinard-Henry, 399 F.3d 1294,

1296 (11th Cir.), cert. denied, 125 S.Ct. 2279 (2005). Given this state of the law,

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the only question left for us to decide is whether the issues Williams’s raises fall

within any of the plea agreement’s exceptions. Id.

The record shows that the magistrate judge explained the significance of the

appeal waiver, questioned Williams concerning the appeal waiver, and confirmed

his understanding of the waiver. Given this, we conclude that Williams made a

knowing and voluntary waiver of his right to appeal his sentence under all but the

four circumstances mentioned supra, none of which applies here. In sum,

Williams has waived his right to appeal whether the district court denied him rights

recognized by Blakely and Booker, and whether the court incorrectly computed his

criminal history points.

AFFIRMED.