                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4263



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JOSEPH E. WILLIAMS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:04-cr-00160-LMB)


Submitted:   November 21, 2007         Decided:     December 12, 2007


Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Geremy C. Kamens,
Assistant Federal Public Defender, Frances H. Pratt, Research and
Writing Attorney, Alexandria, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Patrick F. Stokes, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Joseph E. Williams appeals the district court’s order

imposing a sentence of life imprisonment.              We affirm.

            A jury convicted Williams of being a felon in possession

of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(3)

and 924(e) (2000), and unlawful drug use while in possession of a

firearm and ammunition, in violation of §§ 922(g)(1) and 924(e).

After finding Williams guilty, the jury then determined Williams

deliberately and with malice shot and killed Gail Collins during

the commission of a robbery.        Based upon the jury’s findings that

Williams used the gun to commit first-degree murder, the district

court enhanced his sentence.*       The district court stated there was

“no   question”   the   preponderance       of   the    evidence    established

Williams had used a firearm to murder Collins.             The district court

therefore   sentenced    Williams    to     life   imprisonment,      the   then

mandatory sentence under the guidelines.

            Williams appealed.       We affirmed his conviction, but

vacated his sentence and remanded for a resentencing hearing in

compliance with United States v. Booker, 543 U.S. 220 (2005).               See

United States v. Williams, 445 F.3d 724, 740-41 (4th Cir.), cert.

denied, 127 S. Ct. 314 (2006).      On remand, the district court again

imposed a sentence of life imprisonment.


      *
      Under U.S. Sentencing Guidelines Manual § 2K2.1(c)(1)(B), the
recommended sentence for a felon in possession of a firearm
increases when the gun is used to commit murder.

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           On appeal, Williams challenges his sentence on three

grounds. First, he argues that the district court erred by relying

on the jury’s findings from the first sentencing hearing.             Second,

he argues the evidence from trial and the sentencing hearing was

insufficient to prove that the firearm he possessed was the firearm

used to murder Collins.          Third, Williams argues the sentence of

life imprisonment was unreasonable because the district court based

the sentence, in part, upon erroneous factual conclusions.



I.   Whether the sentencing court erroneously relied upon the
     jury’s findings

           Williams argues the district court erred by relying on

jury findings from the first sentencing hearing.         He contends the

effect of a sentence vacatur and remand from this court is to

nullify the entire initial sentencing proceeding, and thus the

district   court    had    the   responsibility   to   make    the    factual

determinations relevant to sentencing rather than relying on those

made by the jury.         The Government responds this court did not

vacate the jury’s sentencing findings, and further, the district

court merely found those findings persuasive and made its own

factual findings.

           Upon    remand,   neither    party   presented     new    evidence

regarding Collins’s death.        When Williams objected to any reliance

on the jury findings made during the prior sentencing hearing, the

district court responded, “It is up to the Court to make the

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appropriate sentencing decision, but the factual findings of this

jury are, I think, at this point unassailable . . . .”          The

district court further stated that “the case is back before this

Court on the factual record that’s been clearly established to

determine whether the 3553 factors, what the appropriate sentence

would be.”

          “[T]he mandate of a higher court is ‘controlling as to

matters within its compass.’”   United States v. Bell, 5 F.3d 64, 66

(4th Cir. 1993) (quoting Spraque v. Ticonic Nat’l Bank, 307 U.S.

161, 168 (1939)).

     [W]hen this court remands for further proceedings, a
     district court must, except in rare circumstances,
     implement both the letter and the spirit of the . . .
     mandate, taking into account [our] opinion and the
     circumstances it embraces. However, to the extent that
     the mandate of the appellate court instructs or permits
     reconsideration of sentencing issues on remand, the
     district court may consider the issue de novo,
     entertaining any relevant evidence on that issue that it
     could have heard at the first hearing.

Bell, 5 F.3d at 66-67 (internal citations omitted).

          We remanded this case solely due to the “statutory Booker

error [that] occurred because the district court treated the

Guidelines as mandatory.” Williams, 445 F.3d at 741. The district

court was bound upon remand only to reconsider its sentence, with

the sentencing guidelines viewed as advisory.   We did not find any

other error in the sentencing proceedings, nor did either party

allege that any other error occurred.    In applying the guidelines

as discretionary and resentencing Williams, the district court did

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not   err   by   considering    the    jury     findings   from   the   original

sentencing hearing because those findings remained undisturbed.



II.   Whether    the    evidence   sufficiently     proved   Williams    killed
      Collins

            Williams contends the district court erred by applying

the   sentencing       guidelines’     murder    cross-reference    provisions

because the evidence was not sufficient to prove the gun he

possessed was the gun used to kill Collins.           He notes no eyewitness

testimony connected him or his gun directly to Collins’s death.

            In reviewing a sentencing judge’s application of the

sentencing guidelines, this court reviews factual determinations

for clear error.        United States v. Green, 436 F.3d 449, 456 (4th

Cir.), cert. denied, 126 S. Ct. 2309 (2006).                 “If the court’s

findings may rationally be said to be supported by a preponderance

of the evidence, they may not be disturbed on appeal.”                   United

States v. Crump, 120 F.3d 462, 468 (4th Cir. 1997).

            In our previous consideration of this case, we recited in

great detail the evidence connecting Williams to the murder of Gail

Collins and see no need to do so again.            See Williams, 445 F.3d at

727-29.      There,     we   stated,    “The    evidence   presented     by   the

government directly and quite compellingly tied Williams to the

murder of Gail Collins.”       Williams, 445 F.3d at 732.          We therefore

conclude the district court’s finding that Williams used his

firearm to murder Collins is supported by a preponderance of the

                                       - 5 -
evidence.    Thus, the district court did not err by applying the

murder cross-reference provisions of USSG § 2K2.1(c)(1)(B) to

determine Williams’s guidelines sentence.



III.   Whether Williams’s sentence was reasonable

            Williams argues his sentence was unreasonable because the

district court based it, in part, upon incorrect factual findings.

Specifically, Williams argues the district court erred in its

tallies of the number of Williams’s prior convictions and of the

amount of time Williams had been out of prison before committing

the instant offense, and by failing to fully consider his efforts

at rehabilitation.      The Government contends the sentence was

reasonable because the district court conducted a thorough analysis

and properly focused on the key factors supporting a life sentence.

            This court reviews “‘a district court’s interpretation of

the applicable sentencing guidelines de novo and its factual

findings for clear error.’”      United States v. Collins, 415 F.3d

304, 315 (4th Cir. 2005) (quoting United States v. Quinn, 359 F.3d

666, 679 (4th Cir. 2004)). A sentence within a properly calculated

advisory guidelines range is presumptively reasonable.                United

States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006); see also

Rita   v.   United   States,   127    S.     Ct.   2456   (2007)   (upholding

presumption of reasonableness).            This presumption can only be

rebutted by showing the sentence is unreasonable when measured


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against    the    factors    in    18   U.S.C.    §   3553(a)      (2000).          United

States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006), cert.

denied, 127 S. Ct. 3044 (2007).

            Williams’s life sentence is within the range recommended

by the guidelines and is thus presumptively reasonable.                        Williams,

however, asserts that his sentence is unreasonable because the

district    court     made    underlying         factual        findings     that    were

inconsistent with the record and neglected to consider his efforts

to better himself and other ex-convicts. Williams first challenges

the   district      court’s       characterization         of     his   past    robbery

convictions as “numerous.”              Williams argues the district court’s

reference    to    his   “numerous”       robbery     convictions       is     factually

inaccurate because he had only three adult convictions and two

juvenile adjudications for robbery.               We find that the use of the

term “numerous” to describe five acts of robbery does not reflect

that the district court misrepresented the extent of Williams’s

criminal history.

            Williams also disputes the accuracy of the district

court’s conclusion that after a “window of three years” of “being

on the street,” he resumed his criminal activities.                            Williams

asserts that this summary is erroneous because he was released on

parole in 1996 and committed the instant offense in 2003.                              The

district court’s consideration of Williams’s time out of prison was

relevant under § 3553(a)(1) and (a)(2)(C).                       Section 3553(a)(1)


                                         - 7 -
provides that the sentencing court shall consider the defendant’s

history and characteristics, while § 3553(a)(2)(C) provides that

the sentencing court consider, among other factors, the need for

the sentence “to protect the public from further crimes of the

defendant.”

             The district court’s comments at sentencing demonstrate

it was predominately concerned with Williams’s history of violent

crime.      In the context of Williams’s adult criminal history,

starting with his first adult conviction in 1977 at the age of

eighteen and spanning twenty-six years to 2003 with the instant

offense, the court’s error was relatively insignificant.               In light

of the district court’s focus upon Williams’s violent nature and

the need to ensure public safety, we have no doubt that the

district    court’s     miscalculation    or    misstatement    regarding       the

interval between Williams’s release on parole and his murder of

Collins    had   no    impact   upon    the     court’s   assessment      of    the

appropriate sentence.

             As for the evidence Williams presented at sentencing

regarding     his     efforts   to     rehabilitate       himself   and    other

ex-convicts,     this     information     was    certainly     relevant        under

§ 3553(a).    However, it does not demonstrate that his sentence was

unreasonable.       See Montes-Pineda, 445 F.3d at 379.          This evidence

did not outweigh the seriousness of his offense and his chronic




                                       - 8 -
recidivism.   For these reasons, Williams has failed to rebut the

presumption that his sentence was reasonable.

          Accordingly, we affirm Williams’s life sentence.      We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                          AFFIRMED




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