United States v. Patrick Frederick Williams

                                                                    [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________
                                                                FILED
                                  No. 04-14350        U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                           ________________________        February 8, 2006
                                                         THOMAS K. KAHN
                     D.   C. Docket No. 03-14041-CR-KMM        CLERK

UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,

                                    versus

PATRICK FREDERICK WILLIAMS,

                                                          Defendant-Appellant.

                           ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                               (February 8, 2006)

Before BARKETT, WILSON and REAVLEY,* Circuit Judges.

PER CURIAM:



      *
        Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth
Circuit, sitting by designation.
      Patrick Frederick Williams appeals his conviction and life sentence under

21 U.S.C. § 841(a)(1) for possession of cocaine base with intent to distribute. He

argues that his conviction must be reversed because the trial court erroneously

admitted in evidence the hearsay statements of a confidential informant, as well as

evidence of prior conviction for a similar offense. With regard to his sentence,

Williams argues that the trial court: (1) erroneously enhanced his sentence on the

basis of past convictions neither charged in the indictment nor proved at trial, in

violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); (2) erroneously

enhanced his sentence on the basis of a drug quantity neither alleged in the

indictment nor proved at trial, in violation of United States v. Booker, 543 U.S.

220 (2005); (3) erroneously treated the Federal Sentencing Guidelines as

mandatory, in violation of Booker; (4) failed to conduct a sentencing colloquy, in

violation of 21 U.S.C. § 851(b); and (5) failed to provide reasons for Williams’

life sentence, in violation of 18 U.S.C. § 3553(c)(1).

      Having carefully reviewed this record, we find no reversible error in the

district court’s evidentiary rulings and thus affirm Williams’ conviction. We

likewise find that, pursuant to this Court’s precedent, four of the five claimed

sentencing errors have no merit. First, it was not error to enhance Williams’

sentence on the basis of prior convictions properly noted in the presentence report

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(PSI). See United States v. Burge, 407 F.3d 1183, 1188 (11th Cir. 2005) (“[T]he

government need not allege in its indictment and need not prove beyond a

reasonable doubt that a defendant had prior convictions for a district court to use

those convictions for purposes of enhancing a sentence.” (internal quotation marks

and citation omitted)).

      Second, we find no constitutional Booker error in assigning to Williams a

base offense level of 30, the figure used for crack offenses involving between 35

and 50 grams. Although Williams’ conviction was based on only “five grams or

more,” his failure to contest the 37 grams imputed in the PSI constituted an

admission of that quantity. See United States v. Shelton, 400 F.3d 1325, 1330

(11th Cir. 2005).

      Third, we reject Williams’ claim that the trial court committed reversible

Booker error by construing the sentencing guidelines as mandatory. See Booker,

125 S.Ct. at 756. Williams recognizes that this claim must be evaluated under the

plain error standard of review, as it was not preserved by an objection in the trial

court. Because there is no reason to think that Williams’ sentence would have

been lighter if the court had properly applied the guidelines as advisory, he cannot

meet that standard, whose rigorousness in the Booker context we recently

emphasized in United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005).

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      Fourth, Williams cannot prevail on the claim that his sentence must be

vacated because the district court failed to inquire “whether he affirms or denies

that he has been previously convicted as alleged in the information . . . .” 21

U.S.C. § 851(b). The convictions relied upon for Williams’ sentence

enhancements occurred in 1996 and 1997, respectively, and § 851(e) barred him

from “challeng[ing] the validity of any prior conviction . . . which occurred more

than five years before the date of the information . . . .” 21 U.S.C. § 851(e).

Because this provision precluded Williams from challenging the prior convictions

“as a matter of law,” the district court was “not required to adhere to the rituals of

§ 851(b).” United States v. Weaver, 905 F.2d 1466, 1482 (11th Cir. 1990) (citation

and internal quotation marks omitted).

      As to the fifth asserted sentencing error, it is uncontested that the district

court failed to comply with 18 U.S.C. § 3553(c)(1), which requires the court, at the

time of sentencing, to “state in open court the reasons for its imposition of the

particular sentence, and, if the sentence . . . exceeds 24 months, the reason for

imposing a sentence at a particular point within the range” advised by the

Guidelines. We reject the government’s argument that this error is subject only to

plain error review. In United States v. Parrado, we simply asked whether the trial

court had fulfilled its requirement under § 3553(c)(1) to “tailor its comments to

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show that the sentence imposed is appropriate . . . .” 911 F.2d 1567, 1572 (11th

Cir. 1990). We focus exclusively on the “sufficiency” of the court’s conduct at

sentencing, not that of the defendant: “Congress has specifically proclaimed that a

sentencing court shall state ‘the reason for imposing a sentence [exceeding 24

months] at a particular point within the range.’ . . . When a sentencing court fails

to comply with this requirement, the sentence is imposed in violation of law . . . .

U.S. v. Veteto, 920 F.2d 823, 826 (11th Cir. 1991) (citations omitted) (emphasis

added).

      In Veteto we remanded for compliance with § 3553(c)(1) because the trial

court explained a sentence in excess of 24 months with the “truism” that the

chosen punishment “seem[ed] right.” Id. at 824, 826. Here the trial court offered

no reason for the life sentence it elected to impose upon 26 year-old Williams. The

duty of this Court in the instant case, then, is as clear as the explicit statutory duty

imposed by § 3553(c)(1).

      AFFIRMED in part and REMANDED in part.




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