United States v. Williams

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-1125

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

EDWARD WILLIAMS, a/k/a E-MAC,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

May 27, 1994

Before POLITZ, Chief Judge, DAVIS and WIENER, Circuit Judges.

POLITZ, Chief Judge:
Convicted on a guilty plea of distribution of 10.19 grams of

cocaine base in violation of 21 U.S.C. § 841(a)(1) and sentenced to

30 years imprisonment, Edward Williams appeals his sentence.

Finding no reversible error, we affirm.

Background

Williams was indicted with a score of others in connection

with a narcotics trafficking operation. Under a plea agreement he
pleaded guilty to one count of distribution of cocaine base; the

government agreed to dismiss the remaining conspiracy count and to

recommend that his sentence be made to run concurrently with a

sentence he was then serving. The factual stipulation accompanying

the guilty plea reflects that Edwards provided 10.19 grams of

cocaine base to Thomas Edward Rackstraw, a codefendant, for sale to

an undercover agent. In tentative findings the district judge

informed Williams that he intended to hold him accountable for the

total amount of drugs sold by the conspiracy -- some 20 kilograms

of cocaine base. When Williams protested this quantity the

district court gave him the opportunity to withdraw his guilty

plea; Williams declined to do so. The court thereafter adopted its

tentative findings and sentenced Williams to 30 years imprisonment.

Williams timely appealed.

Analysis

Williams contests the trial court's decision to hold him

accountable for the entire quantity of drugs marketed by the

conspiracy. He contends that he should have been sentenced based

solely on the quantity which he admitted trafficking. U.S.S.G.

1B1.3(a)(1)(B) provides that a defendant who participates in a

joint criminal activity is accountable for the relevant conduct of

the others which was reasonably foreseeable to him.1 The district

court found both requirements met. Reviewing that determination

for clear error,2 we conclude that the district court's finding

1
United States v. Puig-Infante, 19 F.3d 929 (5th Cir. 1994).
2
United States v. Rogers, 1 F.3d 341 (5th Cir. 1993).

2
reflects a plausible view of the record.

The base of operations for the criminal activity was F&F Car

Company, a corporation established by Ronald Jerome Fisher, the

leader, and Shelley Gene Franklin, a top echelon associate, for the

purpose of laundering drug proceeds. According to the factual

stipulation, Rackstraw contacted Williams, also known as "E-Mac,"

at the car company when an undercover agent inquired about the

price of crack cocaine. After obtaining a quote, Rackstraw brought

the agent to the premises. En route, Rackstraw assured the

undercover agent that Williams or Fisher could obtain all the

cocaine that the agent desired. Williams met them at a paint shop

adjacent to the auto shop where he secured and provided the crack.

The Presentence Investigation Report reflects that Williams'

presence at the headquarters of the conspiracy was not

happenstance. It cites an incident in which Fisher, Williams, and

Rackstraw were stopped by the Arizona highway patrol and were found

in possession of a 9 mm. handgun and $4000 in cash. It also

describes an incident in which Rackstraw transported 17 ounces of

cocaine base for Williams from Fort Worth to Denver.3 Finally, in

testimony given at codefendant Rackstraw's sentencing and noticed

by the court without objection, Franklin described Williams as one

who furnished drugs to distributors on behalf of the enterprise.

3
The PSR also cites the opinion of law enforcement agents that
Williams was "the muscle" behind the conspiracy but the report
includes no factual support for that conclusion. As we stated in
United States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993),
"[b]ald, conclusionary statements do not acquire the patina of
reliability by mere inclusion in the PSR." We do not consider that
conclusion in our review.

3
 This factual scenario reflects that Williams was more than a

retail distributor accountable only for the drugs that he

personally distributed.4 He was, rather, part of the hub. He had

an ongoing relationship with Fisher, operated out of the

headquarters, and performed a variety of tasks for the enterprise.

United States v. Mitchell,5 on which Williams relies, is

distinguishable; Mitchell was solely a distributor who had no other

relationship to the top echelon of the conspiracy. The record

amply supports the district court's finding that the full scope of

the conspiracy was reasonably foreseeable to Williams.

The district court erred, however, in considering the

indictment as evidence in the sentencing calculus. An indictment

is merely a charge and does not constitute evidence of guilt.6

That elementary rubric has long been a bedrock of instructions

provided to jurors on voir dire examination and again in the final

charge.7 It would be ill-advised to discard this principle in

4
See U.S.S.G. 1B1.3, Commentary, Application Note 2.
5
964 F.2d 454 (5th Cir. 1992).
6
Taylor v. Kentucky, 436 U.S. 478 (1978); Poretto v. United
States, 196 F.2d 392 (5th Cir. 1952); United States v. Ciambrone,
601 F.2d 616 (2d Cir. 1979); see also United States v. Calandra,
414 U.S. 338 (1974) (the grand jury's responsibilities are to
determine whether there is probable cause to believe a crime has
been committed and to protect citizens against unfounded criminal
prosecutions); 1 Wright, Federal Practice and Procedure: Criminal
2d, § 121 at 338 (1982 and 1994 Supp.) ("An indictment . . . is the
pleading by which the United States puts forward a criminal
charge.").
7
See, e.g., United States v. O'Keefe, 722 F.2d 1175 (5th Cir.
1983); United States v. Nelson, 498 F.2d 1247, 1248 n.1 (5th Cir.
1974).

4
sentencing procedures. Grand juries enjoy broad latitude in the

conduct of their proceedings, free from restrictive evidentiary

rules and other protective incidents of our treasured adversary

proceedings. Such latitude to grand juries is acceptable because

the consequences of an erroneous indictment are tempered before or

at trial.8 No such safeguard inures to a count which has been

dismissed, as in the instant case. While evidence of illegal

activities charged in counts other than the count(s) of conviction

may be considered at sentencing, we hold that the indictment

standing alone may not be considered in the sentencing analysis.9

Although the district court erred in its reliance on the

indictment, the error was harmless. The court considered the

indictment solely as reflecting that the sale for which Williams

was convicted was part of the Fisher conspiracy. The record

contains other reliable data upon which to establish that link,

including the fact that Williams sold the 10.19 grams of crack from

Fisher's base of operations. We entertain no doubt that the

district court would have imposed the same sentence if it had given

8
See United States v. Mechanik, 475 U.S. 66 (1986); Costello
v. United States, 350 U.S. 359 (1956).
9
We are cognizant that in United States v. Ponce, 917 F.2d 841
(5th Cir. 1990), cert. denied, 499 U.S. 940 (1991), we listed the
indictment as support for the sentencing findings. We did so
without discussion but in reliance on United States v. Byrd, 898
F.2d 450 (5th Cir. 1990), where an indictment was used to bolster
hearsay evidence considered in sentencing. To the extent these
cases may be taken to accord evidentiary value to an indictment for
any purpose other than as a charging vehicle or for a pretrial
detention decision, they would be inconsistent with the precedents
cited in footnote 6 hereof.

5
no consideration to the indictment.10

Williams also complains that the quantity of drugs used in his

sentencing carried a higher statutory penalty range than the lesser

quantity to which he pled guilty. This objection lacks merit.

Williams was informed at the time of his plea that he faced a

sentence of imprisonment between 5 and 40 years. He received a

sentence within that range. The 30-year sentence that was imposed

resulted from the application of the Sentencing Guidelines; the

statutory range for the 20 kilograms of cocaine base attributed to

him was irrelevant. Williams was not entitled to a pre-plea fixing

of exactly where within the 5-to-40-year range his sentence would

fall. His expectations may not have been realized, but his

constitutional rights were not infringed.11

AFFIRMED.

10
See Williams v. United States, 112 S.Ct. 1112 (1992).
11
See United States v. Pearson, 910 F.2d 221 (5th Cir. 1990),
cert. denied, 498 U.S. 1093 (1991).

6