[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11196 JANUARY 12, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00005-CR-HL-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(January 12, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Michael Williams appeals his conviction and sentence for various drug
offenses, possession of a firearm by a convicted felon, money laundering, and
structuring monetary transactions. Williams makes three arguments on appeal.
Williams first argues that the district court erroneously denied his motion to
suppress because the affidavit supporting the search warrant of his storage unit was
insufficient. Williams next argues that the district court erred when it refused to
discharge Williams’s appointed counsel. Lastly, Williams argues that the district
court erroneously applied the sentencing guidelines when it calculated Williams’s
sentence. We affirm Williams’s conviction. Because, as the government
concedes, the district court erred when it calculated the Williams’s guideline range,
we remand this case for resentencing.
I. BACKGROUND
Following a three year investigation, Williams and several others were
indicted on multiple counts relating to drug and firearm offenses and money
laundering. Williams pleaded not guilty, and James Jarvis was appointed to
represent him. Several months later, Williams filed a motion and requested that
Jarvis withdraw from representation. Williams asserted that a conflict of interest
had developed. A few days later, Jarvis filed a motion to withdraw as counsel.
Jarvis also filed a motion to suppress the evidence seized in a search of Williams’s
storage unit. Williams challenged both the information contained in the affidavit
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and whether the affidavit supported probable cause for the warrant.
On August 31, 2004, the district court held a pretrial conference for the trial,
which was scheduled for October 18, 2004. Williams’s again argued that he was
not happy with Jarvis’s representation and wished to retain counsel. The district
court advised Williams that Jarvis would continue to represent him until
replacement counsel filed an appearance. The district court denied both motions
for Jarvis to withdraw.
Two weeks before the scheduled trial date, Williams filed another motion
and requested that he be appointed new counsel. At a hearing the same day,
Williams stated that he would prefer to represent himself rather than continue with
Jarvis’s representation. The district court instructed Jarvis to be available for
consultation and informed Williams that he had three days to decide whether to
proceed with Jarvis’s representation or to represent himself. The district court then
took evidence on the suppression motion, which was denied, and, at the close of
the hearing, reset the trial date for October 25, 2004.
On October 20, Williams sent a letter to the district court and stated that he
would hire another attorney if the court would grant a continuance. On the day of
trial, Williams again stated to the court that he wished to retain counsel. The
district court declined to grant a continuance.
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Jarvis represented Williams at trial, and Williams was convicted. Jarvis
made an opening statement and closing argument, cross-examined witnesses, made
objections, and moved for a judgment of acquittal. The jury returned a verdict of
guilty on all counts but one, possession of a dangerous weapon. The jury found
that the specific drug quantity was 1.11171 kilograms of cocaine.
At sentencing, when calculating Williams’s guideline range, the district
court found that Williams was responsible for 2.1622 kilograms of cocaine,
possessed firearms in connection with the offense, and was subject to
enhancements for his role in the offense and sophisticated laundering. The district
court determined that the guideline range was 360 months to life imprisonment.
The district court acknowledged that it was not bound by the guideline range and
sentenced Williams to a total sentence of 425 months of imprisonment.
II. STANDARD OF REVIEW
“A district court’s ruling on a motion to suppress presents mixed questions
of law and fact. We are required to accept the district court’s factual findings as
true unless they are clearly erroneous, but the district court’s application of the law
to the facts is reviewed de novo.” United States v. Ramirez-Chilel, 289 F.3d 744,
748-49 (11th Cir. 2002) (internal quotation marks and citations omitted). We
review the denial of a motion for new counsel for abuse of discretion. See United
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States v. Calderon, 127 F.3d 1314, 1343 (11th Cir. 1997). Questions of law arising
under the Sentencing Guidelines are reviewed de novo. United States v. Crawford,
407 F.3d 1174, 1178 (11th Cir. 2005). We review findings of fact made under the
Sentencing Guidelines for clear error. Id. at 1177.
III. DISCUSSION
Williams’s first two arguments challenge the validity of his conviction, and
his other arguments challenge only his sentence. The first two arguments fail, but
one of his arguments about his sentence has merit. We review each of Williams’s
arguments in turn.
A. The Motion to Suppress Was Properly Denied.
Under the Fourth Amendment “no Warrants shall issue, but upon probable
cause . . . .” U.S. Const. Amend. IV. “Probable cause to support a search warrant
exists when the totality of the circumstances allow a conclusion that there is a fair
probability of finding contraband or evidence at a particular location.” United
States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999). “[T]he [warrant]
affidavit must contain sufficient information to conclude that a fair probability
existed that seizable evidence would be found in the place sought to be searched.”
United States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002) (internal quotation
marks and citation omitted). The affidavit in support of a search warrant also
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should “establish a connection between the defendant and the residence to be
searched and a link between the residence and any criminal activity.” Id. We have
explained also that the information in the affidavit must not be stale. Id.
The affidavit presented to the Georgia court established probable cause to
believe that the items to be seized would be found in Williams’s storage unit. The
affidavit established four pertinent facts: (1) Williams had an ongoing connection
to the storage unit; (2) according to the manager of the storage facility, Williams
had rented the unit using a false identity; (3) Williams had amassed significant
amounts of cash and assets, which were scattered throughout several banks; and
(4) according to the statements of two of his co-conspirators, Williams used the
unit to hide drugs and money. This information was sufficient to establish
probable cause to believe that drugs or evidence related to illegal drug activity
would be found in the storage unit.
Williams argues that the information contained in the affidavit was stale, but
the information suggested that Williams had an ongoing relationship with the
storage unit. The manager of the facility notified authorities that Williams had
visited the unit twice in the preceding month. The affidavit also established that
Williams was significantly involved in the drug trade and had used the unit to hide
drugs and money. The district court could reasonably conclude that this
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information was not stale. See United States v. Bervaldi, 226 F.3d 1256, 1265
(11th Cir. 2000). The district court properly denied the motion to suppress.
B. Williams Was Not Prejudiced by the Continued Representation of Jarvis.
Williams argues that the district court abused its discretion when it denied
his motion to appoint new counsel. The record reflects that there was conflict
between Williams and Jarvis. To prevail on his argument, Williams must prove
that he was prejudiced by Jarvis’s continued representation. Calderon, 127 F.3d at
1343. A defendant can prove such prejudice by demonstrating that his “counsel’s
performance was not within the range of competence demanded of attorneys in
criminal cases and that but for counsel’s continued representation . . . , the result of
the proceeding would have been different.” Id. (internal quotations omitted).
Williams does not make any attempt to demonstrate how he was prejudiced
by Jarvis’s representation. Indeed, the record reflects that, acting on Williams’s
behalf, Jarvis made an opening statement, cross-examined witnesses throughout
the trial, moved for judgment of acquittal under Federal Rule of Criminal
Procedure 29, raised objections, and made a closing argument. The record also
reflects that the jury acquitted Williams of one of the charged counts. Even if the
district court abused its discretion, Williams has not established any prejudice, and
his argument fails. See id.
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C. Williams’s Case Must Be Remanded for Resentencing.
Williams raises four issues on appeal with respect to enhancements of his
sentence. We address each enhancement in turn. We are not asked to review the
reasonableness of the sentence imposed.
First, Williams argues that the district court erred when it held him
accountable for over 2 kilograms of cocaine when the jury concluded that he
possessed 1.11171 kilograms of cocaine. Section 2D1.1(6) of the guidelines
indicates that, where the amount of drugs involved in the offense conduct exceeds
2 kilograms but is less than 3.5 kilograms of cocaine, the base offense level is 28.
U.S.S.G. § 2D1.1(b). Because the testimony presented at trial evidenced that the
cocaine found in Williams’s storage unit totaled over two kilograms, the finding
that Williams was accountable for 2.1622 kilograms of cocaine was not clearly
erroneous.
Second, Williams argues that the district court erred in including a four-level
adjustment to reflect that he had organized or led the cocaine distribution.
Williams asserts that there were not five participants in the cocaine distribution
scheme, but section 3B1.1(a) of the Sentencing Guidelines outlines two situations
in which a defendant’s leadership role merits a four-level enhancement. “First,
enhancement is appropriate where the defendant plays a leadership role in criminal
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activity involving five or more participants.” United States v. Holland, 22 F.3d
1040, 1045 (11th Cir. 1994). Second, “even where the activity involves less than
five participants, a section 3B1.1(a) adjustment nonetheless will apply where the
defendant plays a leadership role and the operation is ‘otherwise extensive.’” Id.
Thus, application of § 3B1.1(a) requires showing both an extensive operation and
“the exercise of some authority in the organization, the exertion of some degree of
control, influence, or leadership.” United States v. Yates, 990 F.2d 1179, 1182
(11th Cir. 1993) (quoting United States v. Brown, 944 F.2d 1377 (7th Cir. 1991)).
The record support the latter basis for an adjustment. The testimony at trial
evidenced that Williams played a leadership role in an operation that was
“otherwise extensive,” because he exerted control, influence, or leadership with
respect to the money laundering activities. See Yates, 990 F.2d at 1182. The
testimony established that Williams recruited co-conspirator Sharon Twine,
bringing her paperwork regarding the certificates of deposits he purchased for large
sums of money on behalf of his children and her children and had her sign them.
There was also testimony that Williams had 17 different bank accounts, in his
name and in his children’s names.
Third, Williams argues that, because the jury specifically acquitted him of
possession of a dangerous weapon, the district court erred when it increased his
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offense level by two to reflect that he possessed a weapon during the commission
of the offenses. Williams did not object to the imposition of a firearm
enhancement in the district court. We review his argument regarding the
imposition of this enhancement, therefore, for plain error. United States v. Olano,
507 U.S. 725, 731-732, 113 S. Ct. 1770, 1776 (1993).
Williams’s argument fails. A two-level enhancement is appropriate if a
firearm was possessed during the commission of the offense. United States v.
Smith, 127 F.3d 1388, 1389 (11th Cir. 1997). “Acquitted conduct may be
considered by a sentencing court because a verdict of acquittal demonstrates a lack
of proof sufficient to meet a beyond-a- reasonable-doubt standard-a standard of
proof higher than that required for consideration of relevant conduct at
sentencing.” United States v. Stanley, 24 F.3d 1314, 1322 (11th Cir. 1994)
(citation omitted). Testimony introduced at trial showed that authorities found two
handguns when they searched Williams’s storage unit. The district court did not
plainly err in finding that the firearms were possessed in connection with the drug
and money laundering offenses.
Finally, Williams argues that the district court erred in the increasing offense
level to reflect his sophisticated laundering techniques. The government concedes
that this enhancement was erroneously imposed. Resentencing is required.
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IV. CONCLUSION
We affirm Williams’s convictions. Because the guideline range was
erroneously enhanced based on sophisticated laundering techniques, we vacate
Williams’s sentence and remand for resentencing.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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