     Case: 09-30771 Document: 00511480203 Page: 1 Date Filed: 05/17/2011




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

                                                 FILED
                                                                            May 17, 2011
                                     No. 09-30771
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARCUS C WILLIAMS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 3:08-CR-81-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       A grand jury indicted Marcus C. Williams for one count of violating 18
U.S.C. § 922(g)(1) by possessing four firearms and ammunition after having been
convicted of a felony. Williams pleaded not guilty and proceeded to trial.
Although witnesses testified that he possessed all four firearms listed in the
indictment, as well as ammunition, the jury found Williams guilty of violating
§ 922(g)(1) only with respect to a single pistol. When the district court calculated
his guideline range of imprisonment, it held Williams accountable for possessing

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 09-30771 Document: 00511480203 Page: 2 Date Filed: 05/17/2011

                                 No. 09-30771

all four firearms, despite his objection. The court then sentenced him to the
statutory maximum term of 120 months of imprisonment. 18 U.S.C. § 924(a)(2).
      Williams argues that the district court violated his constitutional rights
by taking into account conduct that the jury acquitted him of committing, but he
correctly acknowledges that this argument is foreclosed by United States v.
Watts, 519 U.S. 148, 157 (1997). He also contends that his sentence violates his
Sixth Amendment right to a jury trial because it would not pass muster under
the review for reasonableness set forth in the remedial opinion in United States
v. Booker, 543 U.S. 220 (2005), except for the judge’s finding that Williams
possessed the three firearms that the jury acquitted him of possessing.
However, we recently held that “[i]rrespective of whether Supreme Court
precedent has foreclosed as-applied Sixth Amendment challenges to sentences
within the statutory maximum that are reasonable only if based on judge-found
facts, such challenges are foreclosed under our precedent.” United States v.
Hernandez, 633 F.3d 370, 374 (5th Cir. 2011) (footnote omitted).
      AFFIRMED.




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