   Case: 10-10775       Document: 00511587084         Page: 1     Date Filed: 08/30/2011




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

                                                                            FILED
                                                                          August 30, 2011
                                       No. 10-10775
                                                                           Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

DEXTER DWAYNE WILLIAMS,

                                                   Defendant-Appellant.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:08-CR-151-1




Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
       Dexter Williams appeals his bank robbery sentence on the ground that it
is substantively unreasonable. Finding no abuse of discretion, we affirm.


                                              I.
       The presentence report (“PSR”) calculated an offense level of 24 under

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 10-10775

U.S.S.G. § 2B3.1 because Williams stole bank funds and made a death threat to
the teller. The PSR determined Williams to be a career offender because he had
committed two crimes of violence in addition to his current bank robbery. See
§ 4B1.1(a). It accordingly adjusted his offense level to 32 and his criminal his-
tory category to VI. § 4B1.1(b). It then subtracted three levels for acceptance of
responsibility, see § 3E1.1, for a net offense level of 29.
      The PSR recommended that Williams be sentenced as a career offender
because of the following:
      •      In 1990, he was arrested and subjected to Article 15 non-judicial
             punishment for altering a public document while in the Army.
      •      In 1996, he was charged with two counts of indecent contact with a
             child and one count of assault with bodily injury and sentenced to
             two years in prison on each indecency count and one year on the
             assault count.
      •      In 2000, he committee three bank robberies, all involving death
             threats. The government charged him with one, he pleaded guilty,
             and was sentenced to 96 months in prison.
      •      In 2008, while on supervised release from his previous robbery con-
             viction, he committed three more bank robberies, two of which
             included death threats. He confessed to all three, but the govern-
             ment again only charged him with one, to which he pleaded guilty.

Based on Williams’s career offender designation, the PSR recommended a guide-
line sentence of 151 to 188 months in prison.


                                         II.
      Williams argued that the PSR erred in designating him as a career
offender under Shepard v. United States, 544 U.S. 13, 26 (2005), because his
indecency convictions could not be considered “crimes of violence” based solely
on the charging documents or the facts that Williams had admitted. The district
court agreed and adjusted his offense level to 21 and his criminal history cate-
gory to V, yielding a guideline range of 70 to 87 months.


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                                  No. 10-10775

      Finding it “ludicrous,” however, that facts outside the charging documents
could not be considered, the district court decided that “those things have to be
taken into account” and departed upward from the range, sentencing Williams
to 188 months, at the top of the range that would have resulted had Williams
been considered a career offender.
      Williams appealed, and this court vacated the sentence because the dis-
trict court could not make an end-run around Shepard by departing upward
based on facts it was prohibited from using to determine sentencing enhance-
ments. United States v. Williams (“Williams I”), 373 F. App’x 451, 455-56 (5th
Cir. 2010). The panel remanded for re-sentencing, noting that “Williams’s crim-
inal history . . . supports an upward departure or a non-Guideline sentence,” id.
at 456, and that the district court “retains discretion on remand to make a deter-
mination on the propriety of” such a sentence, id. at 456 n.3.


                                       III.
      On remand, the probation officer issued an addendum to the PSR that cal-
culated a hypothetical guideline range that took Williams’s two uncharged 2008
bank robberies into account. Including that conduct, the PSR stated that Willi-
ams’ offense level would be 24, his criminal history category would be V, and his
guideline range would be 92 to 115 months. It also suggested an upward depar-
ture pursuant to U.S.S.G. § 5K2.21 or an upward variance based on the
18 U.S.C. § 3553(a) factors.
      The district court adopted the PSR’s guidelines calculations. It found by
a preponderance of the evidence that Williams had committed the two additional
2008 robberies for which he was not prosecuted. It then imposed an upward var-
iance of 170 months, explaining that Williams’s five prior convictions, the two
uncharged robberies, and the fact that he committed his most recent bank rob-
beries while on supervised release from his previous bank robbery conviction

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                                     No. 10-10775

indicated that he is a “serious danger to the public” and that his previous sen-
tences failed to deter him. The court accordingly concluded that, based on Wil-
liams’s characteristics and the nature and circumstances of his offense and crim-
inal history, a 170-month sentence would best serve the § 3553(a) goals of pun-
ishment, deterrence, respect for the law, and protection of the public.


                                          IV.
      Williams argues that his sentence is substantively unreasonable because
(1) the entire Northern District of Texas has “flouted” Congress’s statutory objec-
tive of reducing sentencing disparities and (2) his sentence is greater than neces-
sary to serve § 3553(a)’s purposes. We review the reasonableness of a sentence
for abuse of discretion, whether it is inside or outside the guideline range. Gall
v. United States, 552 U.S. 38, 51 (2007). We consider “the totality of the circum-
stances, including the extent of any variance from the Guidelines range.” Id.
Our review is “highly deferential as the sentencing judge is in a superior position
to find facts and judge their import under § 3553(a) with respect to a particular
defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008) (per curiam).


                                           A.
      Williams points to statistics showing that, in 2009, 24.1% of defendants
convicted of robbery in the Northern District of Texas were given upward depar-
tures or variances, as compared to 4.6% of defendants nationwide.1 The num-




      1
       See U.S. SENTENCING COMM’N, STATISTICAL INFORMATION PACKET, FISCAL YEAR 2009,
NORTHERN DISTRICT OF TEXAS tbl.10, available at http://www.ussc.gov/Data_and_Statistics/-
Federal_Sentencing_Statistics/State_District_Circuit/2009/txn09.pdf.

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                                       No. 10-10775
bers for 2008 were 15.5% for the district and 4% nationwide.2 He argues that
those statistical differences show that judges in the district are too harsh on rob-
bers. But Williams must explain why he does not warrant an upward variance,
because his offense, history, and characteristics do not warrant such a variance.3
That a court is less lenient than most on average does not necessarily make it
too harsh in this case.


                                              B.
       Williams contends more generally that his sentence was greater than nec-
essary to effect the § 3553(a) sentencing factors.4 He relies on the fact that the
sentence is higher than the hypothetical guidelines sentence that would apply
if he had been convicted of his three most recent bank robberies rather than just
one. He notes that the hypothetical guideline range already incorporated all of
the district court’s reasons for upwardly departing from the guidelines.5
       Williams is correct that the facts on which the district court relied were
already reflected in the PSR addendum’s hypothetical guideline range. But a
district court may “rely on factors already encompassed within the guidelines to

       2
       See U.S. SENTENCING COMM’N, STATISTICAL INFORMATION PACKET, FISCAL YEAR 2008,
NORTHERN DISTRICT OF TEXAS tbl.10, available at http://www.ussc.gov/Data_and_Statistics/-
Federal_Sentencing_Statistics/State_District_Circuit/2008/txn08.pdf.
       3
        See Gall, 552 U.S. at 50 (“[The district court[ must make an individualized assessment
based on the facts presented.”); United States v. Willingham, 497 F.3d 541, 544 (5th Cir. 2007)
(“National averages of sentences that provide no details underlying the sentences are unrelia-
ble to determine unwarranted disparity because they do not reflect the enhancements or
adjustments for the aggravating or mitigating factors that distinguish individual cases.”).
       4
        Williams does not argue on appeal that the district court committed procedural error
in resentencing him, for example by inadequately explaining its sentence or again violating
Shepard, so any such issue is waived. United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir.
2000).
       5
        Williams also reiterates that he did not carry weapons, harm anyone, or steal “signifi-
cant” amounts of money. But the district court did not upwardly vary from the guideline
range for those reasons.

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                                        No. 10-10775
support a non-guidelines sentence.” United States v. Key, 599 F.3d 469, 475 (5th
Cir. 2010). That is no less true in the case of hypothetical guidelines. Indeed,
to hold otherwise “would essentially render the Guidelines mandatory.” United
States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008).
       The district court disagreed with the PSR addendum’s hypothetical guide-
line range because, in its considered view, a sentence within that range would
be insufficient to promote punishment, deterrence, respect for the law, and pro-
tection of the public in the case of a brazen recidivist such as Williams. The
issue amounts to a policy dispute between Williams and the Sentencing Commis-
sion on the one hand, and the district court and the U.S. Attorney’s Office on the
other, over whether a sentence in the vicinity of 115 months would be sufficient
to meet the § 3553(a) goals in Williams’s case, or whether a 170-month sentence
would better serve them.
       It is in a district court’s discretion to disagree with the guidelines on such
grounds.6 Given the relatively high likelihood that Williams will reoffend, we
cannot say that the court committed a “clear error of judgment in balancing the
sentencing factors” differently from how the Sentencing Commission would
want. United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).7
       The judgment of sentence is AFFIRMED.




       6
          See Williams, 517 F.3d at 809 (“‘As a general matter, courts may vary [from Guide-
lines ranges] based solely on policy considerations, including disagreements with the Guide-
lines.’” (alteration in original) (quoting Kimbrough v. United States, 552 U.S. 85, 101 (2007))
(internal quotation marks omitted)).
       7
         Williams also argues that he was innocent of his indecency crimes, but he failed to
raise that challenge during resentencing. Assuming arguendo that that is a valid ground to
challenge his bank robbery sentence, it is subject to plain error review. United States v.
Bleike, 950 F.2d 214, 221 (5th Cir. 1991). And because it is a purely factual question that
could have been resolved in the district court, it cannot be plain error. United States v. Rodri-
guez, 602 F.3d 346, 361 (5th Cir. 2010). Williams also raises a congressional policy argument
that he concedes was rejected in Williams I, 373 F. App’x at 455.

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