UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4145
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY OBRIEN WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:15-cr-00107-H-1)
Submitted: November 29, 2016 Decided: December 15, 2016
Before NIEMEYER and KING, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Anne M. Hayes, Cary, North Carolina, for Appellant. John Stuart
Bruce, United States Attorney, Jennifer P. May-Parker, Barbara
D. Kocher, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Obrien Williams pleaded guilty to interstate
transportation for the purpose of prostitution, in violation of
18 U.S.C. § 2421 (2012), and use of a facility in interstate
commerce with the intent to promote and facilitate a business
enterprise involving prostitution offenses, in violation of
18 U.S.C. § 1952(a)(3) (2012). The district court calculated
Williams’ Guidelines range under the U.S. Sentencing Guidelines
Manual (2015) at 46 to 57 months’ imprisonment, imposed an
upward departure, and sentenced Williams to concurrent terms of
84 months’ imprisonment. Williams now appeals and challenges
the imposition of the upward departure. 1 We affirm.
The district court determined that an upward departure from
the Guidelines range was reasonable and necessary in Williams’
case and imposed the departure in two stages. The court
determined first that Williams’ criminal history Category of V
substantially underrepresented the seriousness of his criminal
history and the likelihood he would commit other crimes and
departed upward to a criminal history Category of VI. See USSG
§ 4A1.3(a), p.s. Second, to account for offense conduct that
1
In his opening brief, Williams also argues that the
district court plainly erred in ordering him to register as a
sex offender as a condition of his supervised release. In his
reply brief, however, Williams withdraws this challenge.
We therefore address only Williams’ departure challenge.
2
did not enter into the determination of the Williams’ Guidelines
range—which included “physical injury” and “extreme conduct”—the
district court found that an upward departure from a total
offense level of 17 to 22 was warranted. See USSG §§ 5K2.2,
5K2.8, p.s. The 84-month sentences the district court imposed
fall at the low end of the resulting upward departure Guidelines
range of 84 to 105 months’ imprisonment. Williams argues on
appeal that the district court erred when it departed in part
based on USSG § 5K2.2, p.s., 2 because the record lacks reliable
evidence to support a finding that anyone suffered significant
physical injury as a result of his criminal conduct.
We review a district court’s sentence “for reasonableness
‘under a deferential abuse-of-discretion standard,’” whether the
sentence “is ‘inside, just outside, or significantly outside the
2 This section of the Guidelines provides that:
If significant physical injury resulted, the court may
increase the sentence above the authorized guideline
range. The extent of the increase ordinarily should
depend on the extent of the injury, the degree to
which it may prove permanent, and the extent to which
the injury was intended or knowingly risked. When the
victim suffers a major, permanent disability and when
such injury was intentionally inflicted, a substantial
departure may be appropriate. If the injury is less
serious or if the defendant (though criminally
negligent) did not knowingly create the risk of harm,
a less substantial departure would be indicated.
In general, the same considerations apply as in [USSG]
§ 5K2.1.
USSG § 5K2.2, p.s.
3
Guidelines range.’” United States v. McCoy, 804 F.3d 349, 351
(4th Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 41
(2007)), cert. denied, ___ S. Ct. ___, No. 16–5808, 2016 WL
4575411 (U.S. Oct. 11, 2016). In assessing the district court’s
application of the Sentencing Guidelines, we review that court’s
factual findings for clear error and its legal conclusions de
novo. United States v. Dodd, 770 F.3d 306, 309 (4th Cir. 2014).
“When, [however], a district court offers two or more
independent rationales for its deviation, an appellate court
cannot hold the sentence unreasonable if the appellate court
finds fault with just one of these rationales.” United
States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008).
In light of these principles and after review of the record
and the parties’ briefs, we conclude that Williams fails to
establish reversible error by the district court. Assuming
without deciding that the district court erroneously departed
from the Guidelines range under USSG § 5K2.2, p.s., the court
additionally based the second stage of its departure decision on
extreme conduct that did not enter into the determination of
Williams’ Guidelines range. On appeal, Williams does not raise
any challenge to this additional basis underlying the second
stage of the upward departure decision. By failing to present
any challenge in this regard, Williams has waived review of this
issue. See Snyder v. Phelps, 580 F.3d 206, 216-17 (4th Cir.
4
2009). He thus fails to establish reversible error by the
district court in the second stage of its departure decision.
As the second stage of the departure decision is the only stage
Williams challenges, we affirm the criminal judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
5