United States v. Williams

REVISED February 20, 2008

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
February 18, 2008
No. 06-30010
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,

Plaintiff–Appellee,
v.

GEORGE W. WILLIAMS,

Defendant–Appellant.

Appeal from the United States District Court
for the Western District of Louisiana

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
George W. Williams was originally sentenced prior to the issuance of
United States v. Booker,1 under a mandatory Sentencing Guidelines regime. In
a prior appeal, this court held that certain factors did not justify an upward
departure from the mandatory Guidelines range. On remand, after Booker was
decided, the district court imposed a non-Guidelines sentence greater than the
advisory Guidelines range. We hold that the district court did not violate the

1
United States v. Booker, 543 U.S. 220 (2005).
 No. 06-30010

law of the case in imposing the sentence and that the sentence was not
unreasonable. We therefore affirm.
I
George W. Williams was convicted of federal conspiracy, fraud, money
laundering, and criminal forfeiture. The facts underlying these convictions were
described by this court in United States v. Williams.2 The district court
sentenced Williams to 172 months of imprisonment under the then-mandatory
Guidelines. The district court grouped Williams’s offenses, and applied the base-
offense level of the money laundering guideline,3 on the ground that it was the
highest among the grouped offenses.4 The district court enhanced this level by
two based on its finding that Williams had obstructed justice by perjuring
himself at trial,5 and upwardly departed from the guidelines by four levels based
on its finding that the money laundering scheme was complex and involved a
large number of victims.6
Williams appealed the sentence, claiming that both the enhancement and
the upward departure were in error. This court held there was no error in the
enhancement based on obstruction of justice7 but held that the district court did
err in its upward departure based on complexity and number of victims.8 The
court reasoned that the scheme was not exceptional in its complexity nor in the

2
United States v. Williams, 101 F. App’x 435, 436 (5th Cir. 2004).
3
See U.S.S.G. § 2S1.1(a)(1) (1998).
4
See id. § 3D1.2 (1998).
5
See id. § 3C1.1 (1998).
6
See id. § 5K2.0 (1998).
7
See Williams, 101 F. App’x at 437-38.
8
See id. at 438-39.

2
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number of victims within the meaning of § 5K2.0,9 as the district court had
found.10 This court therefore vacated the sentence and remanded to the district
court in June, 2004.
In January, 2005, the Supreme Court decided United States v. Booker,11
holding both that “[a]ny fact (other than a prior conviction) which is necessary
to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt,”12 and that the
guidelines must be non-mandatory in order to comply with the Sixth
Amendment.13
In December, 2005, the district court held a re-sentencing hearing. The
district court apparently believed that the enhancement based on obstruction of
justice was invalid under Booker,14 since the fact of perjury had not been found
by a jury nor admitted by Williams. Without the obstruction of justice
enhancement and the upward departure for complexity and number of victims,
the advisory guideline sentencing range was 78 to 97 months. Citing the
sentencing factors stated in 18 U.S.C. § 3553(a) and the specific circumstances
of Williams’s case, the court imposed a non-Guidelines sentence and again
sentenced Williams to 172 months of imprisonment.

9
U.S.S.G. § 5K2.0 (1998).
10
See Williams, 101 F. App’x at 438-39 (citing United States v. Hemmingson, 157 F.3d
347, 363 (5th Cir. 1998) and United States v. Tansley, 986 F.2d 880 (5th Cir. 1993)).
11
543 U.S. 220 (2005).
12
Id. at 244.
13
Id. at 245-46.
14
Id.

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 No. 06-30010

Williams has appealed. He claims (1) that the sentence violates the law
of the case established by this court in the first appeal, because the district
court’s stated factors for ordering 172 months of imprisonment were many of the
same factors that this court held did not justify a four-level upward departure
under the Sentencing Guidelines in the initial sentencing; and (2) that the
172-month sentence is unreasonable.
II
We review a district court’s interpretation of our remand order de novo,
including whether the law of the case forecloses any of the district court’s actions
on remand.15 The law of the case doctrine contemplates that “an issue of fact or
law decided on appeal may not be reexamined either by the district court on
remand or by the appellate court on a subsequent appeal.”16 “The law of the case
doctrine, however, is not inviolate. We have explained that ‘a prior decision of
this court will be followed without re-examination . . . unless (i) the evidence on
a subsequent trial was substantially different, (ii) controlling authority has since
made a contrary decision of the law applicable to such issues, or (iii) the decision
was clearly erroneous and would work a manifest injustice.’”17 If it appears that
this court’s holding has not been followed in subsequent proceedings, we may
nevertheless affirm the district court if one of the exceptions applies.18

15
United States v. Pineiro, 470 F.3d 200, 204 (5th Cir. 2006).
16
United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002) (quoting Tollett v. City
of Kemah, 285 F.3d 357, 363 (5th Cir. 2002)).
17
United States v. Becerra, 155 F.3d 740, 752-53 (5th Cir. 1998) (quoting N. Miss.
Commc’ns, Inc. v. Jones, 951 F.2d 652, 656 (5th Cir. 1992)), abrogated on other grounds by
Booker, 543 U.S. 220, as recognized by United States v. Farias, 481 F.3d 289 (5th Cir. 2007).
18
See Becerra, 155 F.3d at 753.

4
 No. 06-30010

In the prior appeal we held that the district court “erred by departing
upward from the sentencing guidelines pursuant to § 5K2.0.”19 We concluded
that the facts of Williams’s case did not reveal an exceptional degree of
complexity or number of victims, that the Sentencing Guidelines already took
complexity and number of victims into account, and therefore that the
Guidelines themselves did not allow an upward departure on those grounds.20
Our earlier holding was an interpretation of the mandatory Sentencing
Guidelines, and a non-Guidelines sentence could not be imposed at that time.
The Supreme Court’s decision in Booker was intervening law that created
one of the recognized exceptions to the law of the case doctrine. Booker rendered
the Guidelines sentencing range advisory only.21 This was a dramatic shift in
sentencing law and permitted the district court to consider complexity and
number of victims in selecting a sentence, even though we had ruled that those
factors were improperly considered in upwardly departing pursuant to section
5K2.0 of the then-mandatory regime. The Booker decision was intervening
controlling law that created an exception to the law of the case doctrine.22
III
Williams argues that his sentence is unreasonable, contending that his
money laundering offenses are “run of the mill” and within the “heartland of
money laundering offenses.” He further asserts that the amount of loss is the
relevant measure of harm, not the number of victims or complexity of the scheme

19
101 F. App’x at 439 (emphasis added).
20
Id. at 438-39.
21
See Booker, 543 U.S. at 245.
22
See United States v. Bad Marriage, 439 F.3d 534, 538 (9th Cir. 2006) (“If [the earlier
opinion in this case] is read to establish the law of the case under a mandatory Sentencing
Guidelines regime, Booker, which leaves Guidelines as advisory only, is intervening controlling
authority displacing prior law of case.”).

5
 No. 06-30010

because, he contends, the number of victims and the sophistication of the scheme
is subsumed in the loss tables. The Guidelines range should be applied, he
argues, absent extraordinary circumstances peculiar to the particular defendant.
He asserts that his 172-month sentence (fourteen years and four months) is a
77% increase over the maximum guideline sentence calculated by the district
court, which was 97 months (eight years and one month). A sentence of eight
years and one month would more than satisfy the sentencing goals in 18 U.S.C.
§ 3553, he contends.
A
The Supreme Court has recently provided additional guidance in
determining whether a sentence is reasonable.23 The Court reconfirmed that
“[r]egardless of whether the sentence imposed is inside or outside the Guidelines
range, the appellate court must review the sentence under an abuse-of-discretion
standard.”24 In performing that review, we are to “first ensure that the district
court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range . . . .”25
Although Williams asserts that the district court properly calculated the
Guidelines range, the Government contends otherwise, arguing that the district
court should have applied a two-level enhancement for perjury. We will consider
the Government’s contention since in reviewing the reasonableness of a
sentence, we are to “take into account the totality of the circumstances, including
the extent of any variance from the Guidelines range.”26 The Government has

23
Gall v. United States, 128 S. Ct. 586, 591 (2007).
24
Id. at 597.
25
Id.
26
Id.

6
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not cross-appealed and requested that we remand, so we do not consider whether
a remand would be required if it had done so.
The district court found in its initial sentencing that Williams had
committed perjury during his trial and imposed an obstruction enhancement
under § 3C1.1.27 We affirmed that enhancement in the first appeal. At the
sentencing hearing on remand, the district court reconfirmed its conclusion that
Williams committed perjury during his trial, but the district court did not apply
an enhancement because Williams “was not charged with nor convicted of
perjury.” However, in order for the enhancement to apply, the fact of perjury
need not be tried to a jury and may instead be found by the sentencing judge by
a preponderance of the evidence.28 The calculation of the Guidelines range at re-
sentencing should have included a two-level enhancement for obstruction of
justice, and the correct advisory sentencing range was 97 to 121 months. This
error does not entitle Williams to any relief because his sentence was not
“imposed as a result of an incorrect application of the sentencing guidelines”29
since the properly calculated range was higher than that applied by the district
court. Nor can it be said that Williams’s sentence “would have been different but
for the district court’s error”30 in calculating the applicable Guideline’s range.
There is no contention that the district court “select[ed] a sentence based
on clearly erroneous facts, or fail[ed] to adequately explain the chosen
sentence . . . .”31 Accordingly, we turn our consideration to “the substantive

27
U.S.S.G. § 3C1.1 (1998).
28
United States v. Alonzo, 435 F.3d 551, 553 (5th Cir. 2006).
29
18 U.S.C. § 3742(f)(1).
30
Williams v. United States, 503 U.S. 193, 203 (1992).
31
Gall, 128 S. Ct. at 597.

7
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reasonableness of the sentence imposed under an abuse-of-discretion
standard.”32
B
When, as here, a sentence is outside the Guidelines range, we “may
consider the extent of the deviation, but must give due deference to the district
court’s decision that the § 3553(a) factors, on [the] whole, justify the extent of the
variance.”33 We apply the familiar deferential standard: “The fact that the
appellate court might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.”34
The district court considered a number of factors in selecting a sentence
of 172 months, including the number of victims who were individuals, the harm
to and disruption of the lives of those victims, the fact that the fraud and money
laundering occurred across 26 states, and the complexity of the scheme. Among
Williams’s chief complaints is his contention that the Guidelines adequately
accounted for these factors and therefore his sentence in excess of the Guidelines
range is unreasonable.
The Supreme Court’s decision in Booker35 implicitly rejected the position
that no additional weight could be given to factors included in calculating the
applicable advisory Guidelines range, since to do otherwise would essentially
render the Guidelines mandatory. In Gall36 and Kimbrough v. United States37
the Supreme Court has more explicitly set forth the permissible considerations

32
Id.
33
Id.
34
Id.
35
United States v. Booker, 543 U.S. 220 (2005).
36
128 S. Ct. 586 (2007).
37
128 S. Ct. 558 (2007).

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in imposing a sentence, whether within or without an applicable Guidelines
range. The Court explained in Gall that in selecting a sentence, the district
court “may not presume that the Guidelines range is reasonable.”38 The court
“must make an individualized assessment based on the facts presented.”39 This
necessarily means that the sentencing court is free to conclude that the
applicable Guidelines range gives too much or too little weight to one or more
factors, either as applied in a particular case or as a matter of policy. The
Supreme Court confirmed in Kimbrough that while “[a] district judge must
include the Guidelines range in the array of factors warranting consideration,”
the sentencing “judge may determine, however, that, in the particular case, a
within-Guidelines sentence is ‘greater than necessary’ to serve the objectives of
sentencing.”40 Obviously, the sentencing court may also conclude in a particular
case that a sentence within the Guidelines range is not lengthy enough to serve
the objectives of sentencing.
The Supreme Court reiterated in Kimbrough what it had conveyed in Rita
v. United States,41 which is that “as a general matter, ‘courts may vary [from
Guidelines ranges] based solely on policy considerations, including
disagreements with the Guidelines.’”42 In Gall the Court held that a sentence
imposing only probation was reasonable even though the applicable Guidelines
range was 30 to 37 months of imprisonment,43 and the Guidelines did not

38
Gall, 128 S. Ct. at 596-97.
39
Id. at 597.
40
Kimbrough, 128 S. Ct. at 564 (quoting 18 U.S.C. § 3553(a)).
41
127 S. Ct. 2456 (2007).
42
Kimbrough, 128 S. Ct. at 570 (alteration in original) (citing Rita,127 S. Ct. at 2465
for the proposition that “a district court may consider arguments that ‘the Guidelines sentence
itself fails properly to reflect § 3553(a) considerations.’”).
43
Gall, 128 S. Ct. at 592-93.

9
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recommend probation when such a range applied.44 Accordingly, even though
the Guidelines “state[d] that probation alone [was] not an appropriate sentence
for comparable offenses,” the Supreme Court admonished that “the Guidelines
are not mandatory, and thus the ‘range of choice dictated by the facts of the case’
is significantly broadened.”45 The Supreme Court reminded us that “the
Guidelines are only one of the factors to consider when imposing sentence,” and
that even in a case in which only probation was imposed in direct contradiction
of the Guidelines’s policy, “§ 3553(a)(3) directs the judge to consider sentences
other than imprisonment.”46
Both Gall and Kimbrough emphasized that the Guidelines range is but one
factor for a sentencing judge to consider.47 The Guideline range is “the starting
point and the initial benchmark.”48 “[I]n the ordinary case, the Commission’s
recommendation of a sentencing range will ‘reflect a rough approximation of
sentences that might achieve § 3553(a)’s objectives.’”49 But that range is not
mandatory. The § 3553(a) factors must be considered.50 “The sentencing

44
Id. at 601-02 n.11 (“Specifically, probation is not recommended under the Guidelines
when the applicable Guidelines range is outside Zone A of the sentencing table as it is here.
USSG § 5B1.1.”).
45
Id.. at 601-02.
46
Id. at 602.
47
Id. (“[T]he Guidelines are only one of the factors to consider when imposing
sentence . . . .); Kimbrough, 128 S. Ct. at 564 (“[T]he Guidelines, formerly mandatory, now
serve as one factor among several courts must consider in determining an appropriate
sentence.”).
48
Gall, 128 S. Ct. at 596; see also Kimbrough, 128 S. Ct. at 574 (“[D]istrict courts must
treat the Guidelines as the ‘starting point and the initial benchmark.’”) (quoting Gall).
49
Kimbrough, 128 S. Ct. at 574 (quoting Rita, 127 S. Ct. at 2465).
50
Gall, 128 S. Ct. at 596 (“[T]he district judge should then consider all of the § 3553(a)
factors to determine whether they support the sentence requested by a party.”); id. at 597 (“[An
appellate court] may consider the extent of the deviation, but must give due deference to the
district court’s decision that the § 3553(a) factors, on [the] whole, justify the extent of the

10
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judge . . . has ‘greater familiarity with . . . the individual case and the individual
defendant before him than the Commission or the appeals court.’ He is therefore
‘in a superior position to find facts and judge their import under § 3553(a)’ in
each particular case.”51 The Supreme Court further counseled, “[i]n light of
these discrete institutional strengths, a district court’s decision to vary from the
advisory Guidelines may attract greatest respect when the sentencing judge
finds a particular case ‘outside the “heartland” to which the Commission intends
individual Guidelines to apply.’”52 “On the other hand, while the Guidelines are
no longer binding, closer review may be in order when the sentencing judge
varies from the Guidelines based solely on the judge’s view that the Guidelines
range ‘fails properly to reflect § 3553(a) considerations’ even in a mine-run
case.”53
In selecting a sentence for Williams, the district court was not prohibited
from considering the number of victims, the harm to individuals, the expansive
reach of the crimes, or the complexity of the scheme, even though the Guidelines
sentencing range for money laundering54 may implicitly have taken complexity
of the scheme and the number of victims into account by basing the term of
imprisonment on the amount of loss. We find no merit in Williams’s arguments
that these factors could not support a sentence outside the guidelines, although
we recognize that some of our pre-Rita, pre-Gall and pre-Kimbrough decisions

variance.”).

51
Kimbrough, 128 S. Ct. at 574 (quoting Rita, 127 S. Ct. at 2469 and Gall, 128 S. Ct.
at 586).
52
Kimbrough, 128 S. Ct. at 574-75 (quoting Rita, 127 S. Ct. at 2465).
53
Id. at 575 (quoting Rita, 128 S. Ct. at 2465).
54
See U.S.S.G. §§ 2S1.1, 2B1.1 (2005).

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indicate otherwise.55 All of the factors about which Williams complains are
permissible factors for consideration under 18 U.S.C. § 3553(a) in determining
whether a sentence inside or outside the Guidelines would be appropriate.
Williams contends there must be extraordinary circumstances to justify
a sentence 77% higher than 97 months, which was the top of the Guidelines
advisory range found applicable by the district court. (We note that Williams’s
172-month sentence is 42% greater than 121 months, the top of the properly
calculated Guidelines range.)
Williams’s argument that district courts may depart from the Guidelines
only in “extraordinary circumstances peculiar to the particular defendant before
the sentencing court” is directly foreclosed by Gall.56 We may not require district
courts to find “extraordinary” circumstances before they impose sentences
outside of the guidelines range.57 Nor may we use a “rigid mathematical formula
that uses the percentage of a departure [from the Guidelines range] as the
standard for determining the strength of the justifications required for a specific
sentence.”58 Appellate systems of “‘proportional review’” that “apply[] a
heightened standard of review to sentences outside the Guidelines range” are
inconsistent with the abuse-of-discretion standard that must be applied to all

55
See, e.g., United States v. Walters, 490 F.3d 371, 374 (5th Cir. 2007) (invalidating an
above-Guidelines sentence because the district court relied upon factors already incorporated
by the Guidelines); United States v. Perrin, 478 F.3d 672, 678 (5th Cir. 2007) (invalidating a
below-Guidelines sentence in part because the district court relied upon factors already
incorporated by the Guidelines); cf. United States v. Sanchez-Ramirez, 497 F.3d 531, 535-36
(5th Cir. 2007) (affirming the district court’s decision to impose an above-Guidelines sentence
because the circumstances were egregious compared to normal cases of the same type).
56
Gall, 128 S. Ct. at 595 (“We reject, however, an appellate rule that requires
‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.”).
57
Id.
58
Id.

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sentences, “whether inside or outside the Guidelines range.”59 To require
“extraordinary circumstances” or to give “proportional review” would “come[] too
close to creating an impermissible presumption of unreasonableness” for non-
Guidelines sentences.60
We may, however, “take the degree of variance into account and consider
the extent of a deviation from the Guidelines.”61 The Guidelines range
applicable to Williams is 97 to 121 months, which is a range between eight years,
one month and ten years, one month. The 172-month sentence is fourteen years,
four months, which is four years, three months longer than the top of the
Guidelines range, and six years, three months longer than the bottom of the
Guidelines range.
In imposing a 172-month sentence the district court enumerated each of
the factors set forth in 18 U.S.C. § 3553(a) and considered their application to
Williams’s case. The court found that his offense “was horrendous and wrecked
many people’s lives,” that Williams “[b]asically . . . stole money from
individuals.” The district court considered the need for the sentence “to reflect
the seriousness of the offense, to promote respect for the law and to provide just
punishment for the offense” to be an “extremely important” factor. The court
sought “to deter other people from scamming not one community but several
communities throughout 26 states.” The court further found “[t]his particular
defendant has shown no remorse and really doesn’t care that he wrecked the

59
Gall, 128 S. Ct. at 596.
60
Id. at 595-96 (The Supreme Court stressed, “[m]ost importantly, both the exceptional
circumstances requirement and the rigid mathematical formulation reflect a practice—common
among courts that have adopted ‘proportional review’—of applying a heightened standard of
review to sentences outside the Guidelines range. This is inconsistent with the rule that the
abuse-of-discretion standard of review applies to appellate review of all sentencing
decision—whether inside or outside the Guidelines range.”).
61
Id. at 594-95.

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lives of many people by defrauding them of some of their savings.” The court
found no need for educational or vocational training, medical care, or other
corrective treatment. The district court also said,
Based on all the factors of this case, the tremendous problems
that it caused to the individuals, all the testimony that was
presented in court, the fraud and the complexity of the fraud, the
number of states and the number of individuals, and where these
people were sought to in fact contribute to this scheme unwittingly.
The only one who knew that this was a scheme were the ones
putting this scheme together, and the lead person in that entire
scheme was Mr. Williams.

The district court sentenced Williams as follows:
Count 29 172 months
Counts 1 to 28 60 months
Counts 30 to 47 172 months
Counts 53 to 55 120 months

These sentences are to be served concurrently. The district court also ordered
restitution in the amount of $2,995,645.20, and three years of supervised release
for each count, to run concurrently.
We note that the 172-month sentence is below a statutory maximum
sentence of 20 years, which was authorized for Count 2962 as well as for each of
Counts 30 to 47.63 The maximum statutory penalty for each of the offenses
enumerated in Counts 1 to 28 was five years,64 and for each offense enumerated
in Counts 53 to 55, the maximum penalty was ten years.65

62
See 18 U.S.C. § 1956(h).
63
See id. § 1956(a)(1).
64
See id. §§ 371, 1341-43.
65
See id. § 1957(a).

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For the reasons explained in Gall and Kimbrough, we give considerable
deference to the district court’s imposition of the 172-month sentence.66 The
district court saw and heard the evidence, made credibility determinations, had
full knowledge of the facts, and gained insights not conveyed by the record.67
The district court had access to Williams and had “‘greater familiarity with’” this
case and Williams “than the Commission or” this court.68 While we may not
have imposed the same sentence, that is not the test. The district court
considered the factors in 18 U.S.C. § 3553(a) and articulated the reasons for
arriving at the sentence. In light of the record and the district court’s findings,
we cannot say that the district court abused its discretion in concluding that a
172-month sentence was reasonably necessary to achieve the objectives of 18
U.S.C. § 3553(a).69
* * *
We AFFIRM the sentence imposed by the district court.

66
Gall, 128 S. Ct. at 597-98; Kimbrough, 128 S. Ct. at 574-75.
67
See Gall, 128 S. Ct. at 597.
68
Id. at 597-98.
69
See Kimbrough, 128 S. Ct. at 576 (“The ultimate question . . . is ‘whether the sentence
was reasonable—i.e., whether the District Judge abused his discretion in determining that the
§ 3553(a) factors supported a sentence of [15 years] and justified a substantial deviation from
the Guidelines range.’”) (quoting Gall, 128 S.Ct. at 600).

15