United States v. Stacy Williams

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 15-12998
Non-Argument Calendar
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D.C. Docket No. 6:14-cr-00010-LGW-GRS-6

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

STACY WILLIAMS,

Defendant - Appellant.

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Appeals from the United States District Court
for the Southern District of Georgia
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(November 9, 2016)

Before HULL, MARCUS, and EDMONDSON, Circuit Judges.
PER CURIAM:

Stacy Williams appeals her convictions for conspiracy to defraud the United

States, wire fraud, aggravated identity theft, and wrongful disclosure of identifiable

health information, in violation of 18 U.S.C. §§ 371, 641, 1028A, 1343 and 42

U.S.C. §§ 1320-6(a) and 1320-6(b)(3). Williams also challenges her 94-month

total sentence. No reversible error has been shown; we affirm.

Briefly stated, Williams’s convictions stem from her involvement in a

conspiracy to file fraudulent tax returns. Through her employment as a

receptionist at a doctor’s office, Williams had regular access to patients’ personal

identifiable information. In furtherance of the conspiracy, Williams stole patient

information to be used in preparing fraudulent income tax returns and directed the

tax refund checks to be mailed to Williams’s current and former addresses.

On appeal, Williams first contends that the district court violated her Sixth

Amendment confrontation rights by limiting her ability to cross-examine

cooperating co-conspirators -- those who had agreed to testify for the government -

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- about the specific sentences they avoided or hoped to avoid by testifying against

Williams.

Because Williams raised no objection to the district court’s ruling at trial

and, instead, raises this argument for the first time on appeal, we review only for

plain error. See United States v. Sosa, 777 F.3d 1279, 1294 (11th Cir. 2015). To

demonstrate plain error, Williams “must show that there is (1) error, (2) that is

plain, (3) that affects substantial rights, and (4) that seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” See id. (quotation omitted).

A criminal defendant has a right, under the Sixth Amendment, to confront

witnesses against him. U.S. Const. amend. VI. “The main and essential purpose

of confrontation is to secure for the defendant the opportunity of cross-

examination.” United States v. Baptista-Rodriguez, 17 F.3d 1354, 1366 (11th Cir.

1994) (alteration omitted). Still, a “defendant’s right to cross-examine witnesses is

not without limitation.” Id. “Trial judges retain wide latitude to impose reasonable

limits on cross-examination based on concerns about, among other things,

confusion of the issues or interrogation that is repetitive or only marginally

relevant.” Id. at 1370-71.

The district court committed no plain error in limiting Williams’s cross-

examination of the government’s cooperating witnesses. Williams concedes on

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appeal that the circuit courts are split on this issue.1 Given the disagreement

among the circuits on this issue and the absence of controlling precedent from the

Supreme Court or from this Court, Williams can demonstrate no plain error. See

United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (because an error is

“plain” only if the error is “clear under current law,” it follows that “there can be

no plain error where there is no precedent from the Supreme Court or this Court

directly resolving it.”).

II.

Williams next argues that the district court abused its discretion by allowing

the government to introduce evidence of Williams’s 14-year-old, felony shoplifting

conviction. We review the district court’s evidentiary rulings for clear abuse of

discretion. United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003).

As an initial matter, evidence of Williams’s shoplifting conviction was not

introduced to impeach Williams’s character for truthfulness, pursuant to Fed. R.

Evid. 609. Instead, on cross-examination of two of Williams’s character witnesses,

1
The First, Second, Fourth, Seventh, and Eighth Circuits have held that a district court’s
limitation on a defendant’s ability to cross-examine cooperating co-conspirators constitutes no
violation of the Confrontation Clause. Meanwhile, the Third, Fifth, and Ninth Circuits have
made the opposite conclusion. For background, see United States v. Dimora, 843 F. Supp. 2d
799, 842-44 (N.D. Ohio 2012) (collecting cases).
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the government asked whether the witnesses were aware of Williams’s prior

conviction.2

“It is well settled that once a witness has testified about a defendant’s good

character, cross-examination inquiry is allowed as to whether the reputation

witness has heard of particular instances of conduct relevant to the trait in

question.” United States v. Adair, 951 F.2d 316, 319 (11th Cir. 1992); see also

Michelson v. United States, 69 S. Ct. 213, 220 (1948) (“The price a defendant must

pay for attempting to prove his good name is to throw open the entire subject

which the law has kept closed for his benefit and to make himself vulnerable where

the law otherwise shields him.”); Fed. R. Evid. 405(a). “Since the reputation

witness relates what he has heard, the inquiry sheds light on the reliability of the

witness’[s] perceptions about the defendant.” Adair, 951 F.2d at 319. Unlike Rule

609(b), Rule 405(a) has no limitation on the age of the conviction that may be the

subject of cross-examination. See United States v. Edwards, 549 F.2d 362, 367

(5th Cir. 1977) (rejecting the argument that the ten-year limitation in Rule 609(b)

should be read in conjunction with Rule 405(a)). Evidence of a defendant’s prior

misconduct is admissible under Rule 405(a), however, only if “the incidents

2
At trial, Williams objected to questions about the prior felony conviction only on grounds that
the prior conviction was over ten years old.
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inquired about [are] relevant to the character traits at issue in the case.”3 Adair,

951 F.2d at 319.

The district court abused no discretion in permitting the government to

cross-examine Williams’s character witnesses about Williams’s prior shoplifting

conviction. Williams presented two character witnesses who testified on direct

examination that they had known Williams “all her life” and since “the early

[19]90s” and that Williams had a reputation in the community for being an honest

person. Given this testimony, it was proper for the government to test the

credibility of the witnesses’ testimony by cross-examining them about their

knowledge of Williams’s 2000 conviction. Moreover, although Williams’s

shoplifting conviction involved a different underlying offense, Williams put at

issue her general reputation in the community for “honesty” and “truthfulness.”

Because Williams’s shoplifting conviction “would tend to weaken the assertion”

that Williams had a reputation for being an honest person, the district court abused

no discretion in permitting cross-examination about the prior conviction. See

Michelson, 69 S. Ct. at 222 (“It is not only by comparison with the crime on trial

but by comparison with the reputation asserted that a court may judge whether the

prior arrest should be made subject of inquiry.”).

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That Williams had a prior shoplifting conviction is undisputed; thus, the government had “a
good faith factual basis for the incidents raised during cross-examination.” See Adair, 951 F.2d
at 319.
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III.

We review the reasonableness of a sentence under a deferential abuse-of-

discretion standard. Gall v. United States, 128 S. Ct. 586, 591 (2007). The party

challenging the reasonableness of the sentence bears the burden of establishing that

the sentence is unreasonable in the light of both the record and the 18 U.S.C. §

3553(a) factors. 4 United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). We

will reverse a sentence only “if we are left with the definite and firm conviction

that the district court committed a clear error of judgment in weighing the §

3553(a) factors by arriving at a sentence that lies outside the range of reasonable

sentences dictated by the facts of the case.” United States v. Pugh, 515 F.3d 1179,

1191 (11th Cir. 2008).

In reviewing a sentence, we first examine whether the district court

committed a significant procedural error, such as calculating improperly the

guidelines range, failing to consider the section 3553(a) sentencing factors, basing

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

sentence. Gall, 128 S. Ct. at 597. After we have determined that a sentence is
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Under section 3553(a), a district court should consider the nature and circumstances of the
offense, the history and characteristics of the defendant, the need for the sentence to provide
adequate deterrence, respect for the law, and protection of the public, policy statements of the
Sentencing Commission, provision for the medical and education needs of the defendant, and the
need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).
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procedurally sound, we review the sentence’s substantive reasonableness under the

totality of the circumstances. Id. A sentence substantively is unreasonable if it

“fails to achieve the purposes of sentencing as stated in section 3553(a).” Talley,

431 F.3d at 788.

About the procedural reasonableness of her sentence, Williams first

contends that the district court erred in applying a 2-level vulnerable victim

enhancement under U.S.S.G. § 3A1.1(b)(1). We need not address whether the

enhancement was applied properly, however, because the district court said

expressly that “regardless of the outcome of any of the guideline questions, I

would again impose a sentence of 94 months based on the 3553 factors.” See

United States v. Barner, 572 F.3d 1239, 1247-48 (11th Cir. 2009) (“Where a

district judge clearly states that he would impose the same sentence, even if he

erred in calculating the guidelines, then any error in the calculation is harmless.”).

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B.

Williams also contends that her sentence is procedurally unreasonable

because the district court failed to explain adequately its reasons for imposing

consecutive sentences on Williams’s two aggravated identify theft convictions.

Because Williams raises this argument for the first time on appeal, we review only

for plain error. See Sosa, 777 F.3d at 1294.

Factors the district court may consider in deciding whether to run sentences

for multiple counts of aggravated identity theft concurrently or consecutively to

each other include, but are not limited to, (1) “[t]he nature and seriousness of the

underlying offenses”; (2) “[w]hether the underlying offenses are groupable under §

3D1.2”; and (3) “[w]hether the purposes of sentencing set forth in 18 U.S.C. §

3553(a)(2) are better achieved by imposing a concurrent or a consecutive

sentence.” U.S.S.G. § 5G1.2, comment. n.2(B).

Here, the district court explained adequately its decision to impose

consecutive sentences for Williams’s two identity theft counts. In particular, the

district court explained that running the sentences consecutively was appropriate in

the light of the nature and seriousness of the offense, including the “breathtaking

amount of fraud that was perpetrated” and the extent of the harm it caused and

given that Williams took advantage of her position at a doctor’s office to gain

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access to the victims’ personal identifiable information. That the district court’s

explanation included no express reference to each of the non-exhaustive factors

listed in U.S.S.G. § 5G1.2, comment. n.2(B) does not render the sentence

procedurally unreasonable. See United States v. Robles, 408 F.3d 1324, 1328

(11th Cir. 2005) (district courts are not required to conduct an accounting of every

factor and explain the role each played in the sentencing decision). The district

court need only articulate enough reasons to satisfy this Court that it “considered

the parties’ arguments and has a reasoned basis for exercising [its] own legal

decisionmaking authority.” Rita v. United States, 127 S. Ct. 2456, 2468 (2007)

(“The appropriateness of brevity or length, conciseness or detail, when to write,

what to say, depends upon circumstances.”). 5 On this record, we see no plain

error.

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We also reject Williams’s contention that the prosecutor requested consecutive sentences to
punish Williams for exercising her right to proceed to a jury trial. Nothing evidences that the
prosecution acted with a vindictive motive. Although the prosecution mentioned that Williams
was the only defendant out of 56 defendants charged to “hold the government to its burden to go
to trial” -- to which the district court responded immediately (and the prosecution agreed) was
“her right” -- the prosecution did so in the context of explaining that Williams’s trial had served
to reveal the details of how the conspiracy operated. The prosecution then raised a number of
valid reasons to justify the imposition of consecutive sentences based on evidence produced at
trial, Williams’s history, and on Williams’s post-trial conduct.
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C.

Williams has also not shown that her 94-month total sentence is

substantively unreasonable. First, Williams’s sentence is within the applicable

guidelines range; we ordinarily expect such a sentence to be reasonable. See

Talley, 431 F.3d at 788. Williams’s total sentence is also well-below the 20-year

maximum statutory penalty for her wire fraud convictions, which is further

evidence of its reasonableness. See United States v. Gonzalez, 550 F.3d 1319,

1324 (11th Cir. 2008); 18 U.S.C. § 1343.

In determining Williams’s sentence, the district court considered expressly

the parties’ arguments and the section 3553(a) factors. The district court discussed

the nature and circumstances of Williams’s tax fraud scheme, for which Williams

was held accountable for an intended loss amount of $108,388. The district court

also expressed concern about the impact the scheme had had on Williams’s 24

victims, all of whom were patients at the doctor’s office where Williams was

employed and who had provided their identification information for purposes of

receiving medical treatment.

Williams has also failed to demonstrate that she is similarly situated to her

fellow co-conspirators who received lesser sentences. Among other things --

unlike her co-conspirators -- Williams pleaded not guilty, proceeded to trial, and

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provided no assistance to the government. “[D]efendants who cooperate with the

government and enter a written plea agreement are not similarly situated to a

defendant who provides no assistance to the government and proceeds to trial.”

United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009). Thus, Williams

can demonstrate no unwarranted sentencing disparity. See id.

Given the record, we cannot say that Williams’s 94-month sentence failed to

reflect the purposes of sentencing or that the district court committed “a clear error

of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” See

Pugh, 515 F.3d at 1203.

AFFIRMED.