IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 11, 2008
No. 07-60976
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
FREDERICK WILLIAMS
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:06-CR-67-1
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Frederick Williams appeals the sentence he received
after he pleaded guilty, pursuant to a written plea agreement, to distribution of
more than five grams of crack cocaine. He was sentenced to 108 months of
imprisonment, to be followed by five years of supervised release.
Williams asserts that the district court’s decision not to award him an
additional offense level reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1(b) was unreasonable. Williams’s insistence that the district court’s
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-60976
decision was not based on proof beyond a reasonable doubt is unavailing because
such factual findings need only be proved by a “preponderance of the evidence.”
United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 2006). As Williams waited
until the day his trial was scheduled to begin before agreeing to plead guilty (or
even if we credit his assertion that he attempted to change his plea earlier in the
week of trial), the district court’s denial of the reduction did not constitute clear
error “under a standard of review even more deferential than a pure clearly
erroneous standard.” United States v. Gonzales, 19 F.3d 982, 983 (5th Cir. 1994).
Williams also contends that the terms of his plea agreement show that the
district court’s decision not to apply the additional level of reduction was
unreasonable. The plea agreement reserved for the government, however, the
discretion to determine whether Williams “ultimately” deserved the additional
reduction under § 3E1.1(b). Moreover, the decision whether to grant the
additional level of reduction is the district court’s—not the government’s—even
though the court may only do so on the government’s motion, see § 3E1.1,
comment. (n.6). In addition, the district court’s decision was supported by
Williams’s failure to agree timely to plead guilty. See Gonzales, 19 F.3d at 983.
Williams insists that his sentence is unreasonable and should be
recalculated in light of amendments to the Guidelines that were adopted after
his sentence was imposed and that reduce the disparity between powder and
crack cocaine. He did not object that the 2006 version of the Guidelines, which
formed the basis for his sentence, contained disproportionate penalties for
offenses involving crack cocaine. Our review is therefore for plain error. See
United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007), petition for cert. filed,
(Jan 22, 2008) (No. 07-8978); United States v. Hernandez-Martinez, 485 F.3d
270, 272 (5th Cir.), cert. denied, 128 S. Ct. 325 (2007). Williams’s broad
assertions regarding this issue fail to demonstrate that there was error, that it
was plain, and that it affected his substantial rights. See Peltier, 505 F.3d at 392.
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No. 07-60976
Williams has not shown that the district court committed any significant
procedural error in connection with sentencing or that the sentence imposed is
unreasonable, see Gall v. United States, 128 S. Ct. 586, 597 (2007). The
judgment of the district court is AFFIRMED.
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