[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-14350 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ February 8, 2006
THOMAS K. KAHN
D. C. Docket No. 03-14041-CR-KMM CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK FREDERICK WILLIAMS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 8, 2006)
Before BARKETT, WILSON and REAVLEY,* Circuit Judges.
PER CURIAM:
*
Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth
Circuit, sitting by designation.
Patrick Frederick Williams appeals his conviction and life sentence under
21 U.S.C. § 841(a)(1) for possession of cocaine base with intent to distribute. He
argues that his conviction must be reversed because the trial court erroneously
admitted in evidence the hearsay statements of a confidential informant, as well as
evidence of prior conviction for a similar offense. With regard to his sentence,
Williams argues that the trial court: (1) erroneously enhanced his sentence on the
basis of past convictions neither charged in the indictment nor proved at trial, in
violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); (2) erroneously
enhanced his sentence on the basis of a drug quantity neither alleged in the
indictment nor proved at trial, in violation of United States v. Booker, 543 U.S.
220 (2005); (3) erroneously treated the Federal Sentencing Guidelines as
mandatory, in violation of Booker; (4) failed to conduct a sentencing colloquy, in
violation of 21 U.S.C. § 851(b); and (5) failed to provide reasons for Williams’
life sentence, in violation of 18 U.S.C. § 3553(c)(1).
Having carefully reviewed this record, we find no reversible error in the
district court’s evidentiary rulings and thus affirm Williams’ conviction. We
likewise find that, pursuant to this Court’s precedent, four of the five claimed
sentencing errors have no merit. First, it was not error to enhance Williams’
sentence on the basis of prior convictions properly noted in the presentence report
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(PSI). See United States v. Burge, 407 F.3d 1183, 1188 (11th Cir. 2005) (“[T]he
government need not allege in its indictment and need not prove beyond a
reasonable doubt that a defendant had prior convictions for a district court to use
those convictions for purposes of enhancing a sentence.” (internal quotation marks
and citation omitted)).
Second, we find no constitutional Booker error in assigning to Williams a
base offense level of 30, the figure used for crack offenses involving between 35
and 50 grams. Although Williams’ conviction was based on only “five grams or
more,” his failure to contest the 37 grams imputed in the PSI constituted an
admission of that quantity. See United States v. Shelton, 400 F.3d 1325, 1330
(11th Cir. 2005).
Third, we reject Williams’ claim that the trial court committed reversible
Booker error by construing the sentencing guidelines as mandatory. See Booker,
125 S.Ct. at 756. Williams recognizes that this claim must be evaluated under the
plain error standard of review, as it was not preserved by an objection in the trial
court. Because there is no reason to think that Williams’ sentence would have
been lighter if the court had properly applied the guidelines as advisory, he cannot
meet that standard, whose rigorousness in the Booker context we recently
emphasized in United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005).
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Fourth, Williams cannot prevail on the claim that his sentence must be
vacated because the district court failed to inquire “whether he affirms or denies
that he has been previously convicted as alleged in the information . . . .” 21
U.S.C. § 851(b). The convictions relied upon for Williams’ sentence
enhancements occurred in 1996 and 1997, respectively, and § 851(e) barred him
from “challeng[ing] the validity of any prior conviction . . . which occurred more
than five years before the date of the information . . . .” 21 U.S.C. § 851(e).
Because this provision precluded Williams from challenging the prior convictions
“as a matter of law,” the district court was “not required to adhere to the rituals of
§ 851(b).” United States v. Weaver, 905 F.2d 1466, 1482 (11th Cir. 1990) (citation
and internal quotation marks omitted).
As to the fifth asserted sentencing error, it is uncontested that the district
court failed to comply with 18 U.S.C. § 3553(c)(1), which requires the court, at the
time of sentencing, to “state in open court the reasons for its imposition of the
particular sentence, and, if the sentence . . . exceeds 24 months, the reason for
imposing a sentence at a particular point within the range” advised by the
Guidelines. We reject the government’s argument that this error is subject only to
plain error review. In United States v. Parrado, we simply asked whether the trial
court had fulfilled its requirement under § 3553(c)(1) to “tailor its comments to
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show that the sentence imposed is appropriate . . . .” 911 F.2d 1567, 1572 (11th
Cir. 1990). We focus exclusively on the “sufficiency” of the court’s conduct at
sentencing, not that of the defendant: “Congress has specifically proclaimed that a
sentencing court shall state ‘the reason for imposing a sentence [exceeding 24
months] at a particular point within the range.’ . . . When a sentencing court fails
to comply with this requirement, the sentence is imposed in violation of law . . . .
U.S. v. Veteto, 920 F.2d 823, 826 (11th Cir. 1991) (citations omitted) (emphasis
added).
In Veteto we remanded for compliance with § 3553(c)(1) because the trial
court explained a sentence in excess of 24 months with the “truism” that the
chosen punishment “seem[ed] right.” Id. at 824, 826. Here the trial court offered
no reason for the life sentence it elected to impose upon 26 year-old Williams. The
duty of this Court in the instant case, then, is as clear as the explicit statutory duty
imposed by § 3553(c)(1).
AFFIRMED in part and REMANDED in part.
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