United States v. Anthony Williams

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12985 ELEVENTH CIRCUIT
Non-Argument Calendar FEB 8, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-20804-UU-9

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY WILLIAMS,
a.k.a Ant,

Defendant-Appellant.

________________________

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

(February 8, 2012)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
 On November 4, 2010, a Southern District of Florida grand jury returned an

eight-count indictment against Anthony Williams, the appellant, and fourteen

others, charging them with conspiring to traffic “Ecstasy,” in violation of 21

U.S.C. §§ 841(a)(1) and 846, and related offenses. Williams was charged with

two such conspiracies, Counts 6 and 7, and, in Count 8, with possessing a firearm

in furtherance of the Count 7 conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A).

Williams pled not guilty to these offenses and went to trial.1 On the third day of

trial, Williams pled guilty to the three counts. The district court thereafter

sentenced him to concurrent terms of imprisonment of 168 months on Counts 6

and 7, and a consecutive term of 60 months on Count 8, for a total period of

confinement of 228 months. Williams now appeals his sentences on Counts 6 and

7 and the length of the sentences combined, 228 months.

Regarding his sentences on Counts 6 and 7, Williams argues that the district

court: (1) clearly erred in denying his request for a minor-role reduction of his

offense level; (2) clearly erred in applying a four-level enhancement to the base

offense level based on its finding that Williams was a leader or organizer of a

criminal activity that involved five or more participants or was otherwise

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Williams was the only defendant who went to trial. Two of the defendants were never
arrested and thus were on fugitive status. The Government dismissed the case against a third
defendant. The remaining defendants entered pleas of guilty.

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extensive; (3) erred in not granting a downward departure of the Guidelines

sentence range. Finally, Williams contends that the combined sentences are

procedurally and substantively unreasonable.

The following principles govern, in part, our review of Williams’s sentences

on Counts 6 and 7. We consider the district court’s findings of fact under the clear

error standard and its legal conclusions de novo. United States v. Jordi, 418 F.3d

1212, 1214 (11th Cir. 2005). “For a factual finding to be clearly erroneous, this

court, after reviewing all of the evidence, must be left with a definite and firm

conviction that a mistake has been committed.” United States v. Rodriguez-Lopez,

363 F.3d 1134, 1137 (11th Cir. 2004) (quotation omitted).

The Government bears the burden of establishing by a preponderance of the

evidence any facts necessary to support a sentence enhancement. United States v.

Askew, 193 F.3d 1181, 1183 (11th Cir. 1999). The defendant’s failure to object to

allegations of fact in a presentence report (“PSR”), however, admits those facts

and relieves the Government of the burden of establishing such facts at sentencing.

United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006).

With these principles in mind, we turn to Williams’s arguments in the order

listed above.

I.

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 Section 3B1.2(b) of the Guidelines provides that, if the defendant was only

a minor participant in the criminal activity, his total offense level is decreased by

two levels. U.S.S.G. § 3B1.2(b). A defendant plays a “minor role” where he was

“less culpable than most other participants, but whose role could not be described

as minimal.” Id. at. comment. n.5. In making this determination, the district court

must consider the defendant’s role only in relation to the relevant conduct for

which he was held accountable at sentencing. United States v. Rodriguez De

Varon, 175 F.3d 930, 940 (11th Cir. 1999) (en banc). Therefore, where the

defendant’s relevant conduct is identical to his actual conduct, “he cannot prove

that he is entitled to a minor-role adjustment simply by pointing to some broader

scheme for which he was not held accountable.” United States v. Alvarez-Coria,

447 F.3d 1340, 1343 (11th Cir. 2006). In many cases, this analysis will be

dispositive. De Varon, 175 F.3d at 945.

If necessary, the court may also consider the relative culpability of the

defendant, as compared to the other participants who were involved in the

defendant’s relevant conduct. Id. at 944. However, the fact that a defendant is

less culpable than the other participants may not entitle him to a minor-role

sentence reduction, since it is possible for a scheme to involve no minor

participants. Alvarez-Coria, 447 F.3d at 1343.

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 While discussing the four-level leader or organizer sentence enhancement

and the quantity of drugs attributable to Williams, the court analyzed Williams’s

role in the offense. Although Williams did not expressly reiterate this particular

objection at the sentencing hearing, the court understood that Williams objected to

the PSR’s characterization of his role in the offense and that, as a result, he desired

a reduced guideline sentence range.

The district court did not clearly err in denying a minor-role reduction.

Williams was held accountable at sentencing only for the drug activity conducted

at the drug hole, not for Levy’s larger Ecstasy importation and distribution

scheme. The Government presented evidence at trial that Williams directed the

operations at the drug hole, and Williams admitted as much during his plea

colloquy. Codefendant Jean testified that Williams set the price of the drugs,

approved sales on credit, made the deals, contacted the suppliers, and controlled

access to the drug hole. Further, Jean testified that he and the other workers at the

drug hole merely sold drugs at Williams’s direction.

II.

Section 3B1.1(a) of the Guidelines provides that, if the defendant was an

organizer or leader of a criminal enterprise that involved five or more participants

or was otherwise extensive, his base offense level is increased by four levels.

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U.S.S.G. § 3B1.1(a). This enhancement applies where the defendant supervised

one or more other participants. Id. at comment. n.2; United States v. Glover, 179

F.3d 1300, 1302-03 (11th Cir. 1999). In making this determination, the district

court should consider (1) the defendant’s exercise of decision-making authority,

(2) the nature of his participation in the offense, (3) whether he recruited other

participants, (4) whether he claimed a larger share of the proceeds, (5) the degree

of his participation in planning or organizing the offense, (6) the nature and scope

of the illegal activity, (7) and the degree of control and authority that he exercised

over others. Id. at comment. n.4; United States v. Ramirez, 426 F.3d 1344, 1355

(11th Cir. 2005).

Here, the district court did not clearly err in applying the four-level

enhancement. Williams does not challenge the court’s finding that the criminal

enterprise involved five or more individuals or was otherwise extensive. Further,

Williams conceded below, and admits on appeal, that he ran the drug hole. Jean

testified at trial that he and others sold drugs for Williams, who set the prices, did

not allow sales on credit without his approval, controlled whom Sears admitted

into the drug hole, and paid the sellers a 20% commission.

Additionally, FBI Agent Kreitenstein testified that Williams, during a post-

arrest interview, admitted that he bought and sold Ecstasy. Agent Kreitenstein

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also testified that the investigation revealed that Williams directed Jean and

codefendants Roberson and Sears, and that Sears, in at least one intercepted

conversation, asked Williams for permission to sell drugs. Relatedly, Williams

did not object to, and has therefore admitted, the PSR’s assertion that Sears

occasionally sold drugs and gave the proceeds to Williams or, at his direction, to

either Roberson or Jean. Finally, Williams admitted during his plea colloquy that

he directed Roberson and others to bring firearms to the drug hole.

III.

We do not have jurisdiction to review a district court’s denial of a

downward departure request absent evidence that the district court incorrectly

believed that it lacked authority to grant the request. United States v. Dudley, 463

F.3d 1221, 1228 (11th Cir. 2006). When nothing in the record indicates

otherwise, we assume that the district court understood that it had the authority to

depart downward. Id.

Williams does not argue on appeal, and the record does not indicate, that the

district court believed that it lacked the authority to grant a departure. Rather, the

court expressly entertained Williams’s request for a departure and heard

arguments from both parties regarding the mitigating effect, if any, of Williams’s

difficult childhood. The court, apparently having considered Williams’s request,

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denied the departure and explained that Williams, despite his upbringing, still had

the capacity to exercise good judgment.

IV.

We review a defendant’s total sentence for reasonableness under an abuse

of discretion standard. United States v. Rodriguez, 628 F.3d 1258, 1262 (11th Cir.

2010). The court imposed a sentence of 60 months on Count 8 and made it

consecutive to the sentences on Counts 6 and 7 because it was required by law to

do so. Williams argument that the total sentence was unreasonable therefore

concerns the concurrent sentences he received on Counts 6 and 7, his argument

being that the court should have imposed sentences of less than 168 months.

The Counts 6 and 7 sentences were at the low end of the sentence range,

168 to 210 months, prescribed by the Guidelines. We ordinarily expect a sentence

within the Guidelines range to be reasonable. United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005). Further, there is generally no unwarranted disparity

when a defendant who proceeds to trial receives a higher sentence than

cooperating codefendants who pleaded guilty. United States v. Mateos, 623 F.3d

1350, 1367 (11th Cir. 2010), cert. denied, 131 S.Ct. 1540 (2011). Williams, as the

party challenging the sentences, bears the burden of demonstrating that the district

court abused its discretion by imposing an unreasonable sentence. United States v.

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Alfaro-Moncada, 607 F.3d 720, 735 (11th Cir. 2010), cert. denied, 131 S.Ct. 1604

(2011).

A review for reasonableness involves a two-part inquiry. United States v.

Saac, 632 F.3d 1203, 1212 (11th Cir.), cert. denied, 132 S.Ct. 139 (2011). First,

in reviewing for procedural reasonableness, we ensure that the district court

committed “no significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence.” Id. (quotation omitted).

Second, in reviewing for substantive reasonableness, we examine the

totality of the circumstances and determine whether the sentence achieves the

sentencing goals set forth in § 3553(a). Id. at 1214. The § 3553(a) factors

include: (1) the nature and circumstances of the offense; (2) the history and

characteristics of the defendant; and (3) the need for the sentence imposed to

reflect the seriousness of the offense, to promote respect for the law, and to

adequately deter criminal conduct. 18 U.S.C. § 3553(a).

Here, the district court did not abuse its discretion in sentencing Williams to

the concurrent terms of 168 months on Counts 6 and 7. The court did not err in

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calculating the Guidelines sentence range, as discussed above. The court noted

that Williams’s range, although lengthy, was warranted because he had operated

an armed, dangerous drug hole for three years. The court also found that Williams

was responsible for the purchase or sale of 10,000 Ecstasy pills. Prior to

sentencing, the court heard arguments from both parties regarding Williams’s

difficult childhood, and it expressly stated that it considered the Guidelines and

the statutory factors, including Williams’s background.

Further, Williams, although he eventually pleaded guilty, was the only

codefendant who proceeded to trial. Despite this fact, he received a two-level

reduction for acceptance of responsibility.

Williams’s sentences on Counts 6 and 7 are AFFIRMED. Since they are

affirmed it follows that the total sentence of 228 months is also AFFIRMED.

SO ORDERED.

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