18‐1267
United States v. Taj Williams

                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT
                          ____________________

                                 August Term, 2019

(Argued: September 24, 2019                             Decided: November 22, 2019)

                                Docket No. 18‐1267‐cr

                                ____________________

UNITED STATES OF AMERICA,

                                 Appellee,

                   v.

TAJ WILLIAMS,

                         Defendant‐Appellant.

                                ____________________

Before: CALABRESI, POOLER, and PARK, Circuit Judges.

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

York (Wolford, J.) convicting defendant Taj Williams on charges of arson and

possession of unregistered Molotov cocktails after a jury trial. Because we find
that Williams’s arguments on appeal lack merit, we affirm the conviction and

sentence.

      Affirmed.

      Judge Calabresi and Judge Park concur in separate opinions.

                              ____________________

                          MARTIN J. VOGELBAUM, Federal Public Defenders of
                          the Western District of New York, Buffalo, NY, for
                          Defendant‐Appellant Taj Williams.

                          TIFFANY H. LEE, Assistant United States Attorney for
                          James P. Kennedy, United States Attorney for the
                          Western District of New York, Rochester, NY, for
                          Appellee United States of America.

POOLER, Circuit Judge:

                                 BACKGROUND

      Defendant‐Appellant Taj Williams appeals from the April 17, 2018

judgment of conviction and sentence for violations of 18 U.S.C. § 844(i) (damaging

and destroying a building used in interstate commerce by fire) and 26 U.S.C.

§§ 5841, 5845(a)(8), 5845(f), 5861(d) and 5871 (possession of unregistered Molotov

cocktails) following a jury trial in the United States District Court for the Western

District of New York (Wolford, J.). He challenges his conviction on the grounds


                                         2
that the district court committed plain error in the jury instructions; that he was

convicted of a legally impossible crime in violation of his due process rights; that

his custodial statements were made involuntarily; and that the district court

overstated his criminal history at sentencing.

     In the early morning hours on January 18, 2015, an individual set fire to the

Chili Express convenience store in Rochester, New York. Surveillance footage

showed a white Chevy Trailblazer with a distinctive black hood and missing fuel

cap drive by the store twice at 2:52am and 3:18am. A few minutes later, the footage

captured an individual with a dark gray sweatshirt walk around the corner and

approach the store with what appeared to be a tire iron. The person used the tire

iron to smash the glass on the front door. He then took out two Molotov cocktails

from a cellophane bag that was leaking liquid, lit them, and threw them inside. He

also threw a third unlit device into the blaze before running away. The video was

too blurry to identify the person. But other video footage showed an individual

subsequently running through the snow back to the Trailblazer, which was parked

on a nearby side street.

      The Rochester Fire Department (“RFD”) began investigating the cause of the

fire a few hours later, quickly concluding that it was deliberately ignited. From the
                                         3
outset, RFD investigators had suspected Taj Williams’s involvement based on a

previous arson investigation they conducted at the same convenience store two

years earlier. The RFD ran record checks on the white SUV and found a possible

match for a Chevy Trailblazer owned by Williams’s girlfriend. An RFP

investigator drove by her house where he saw it parked in the driveway.

      Law enforcement eventually stopped Williams driving the SUV and

arrested him for failing to have a valid driver’s license. He was brought to the

Public Safety Building downtown where officers questioned him. The officers also

applied for a warrant to search the car, which was approved and executed. The

search turned up a tire iron, a gray sweatshirt, a green BIC lighter, a red gas can,

and a blue two‐tone U‐Haul blanket, which was ripped up.

      On February 11, 2016, a grand jury sitting in the Western District of New

York returned a three‐count indictment against Williams, but the government

eventually withdrew the second count. Count 1 charged Williams with arson in

violation of 18 U.S.C. § 844(i); and Count 3 charged him with the possession of

unregistered Molotov cocktails in violation of 26 U.S.C. §§ 5841, 5845(a)(8), 5845(f),

5861(d) and 5871. A trial began on September 12, 2017, and the jury found him



                                          4
guilty on both counts. After a hearing, the district court sentenced Williams to 104

months’ imprisonment and 3 years’ supervised release.

                                  DISCUSSION

      Williams first contends that the district court committed plain error when

giving its jury instructions on arson and attempted arson. He argues that the court

articulated a “legally incoherent” theory of liability, namely that it suggested to

the jury that it could convict Williams of attempted arson with a reckless mental

state. Because Williams did not object to the jury instructions, we apply a plain

error standard of review. United States v. Prado, 815 F.3d 93, 100 (2d Cir. 2016). In

order to satisfy this standard, an appellant must demonstrate that

       (1) there is an error; (2) the error is clear or obvious, rather than
       subject to reasonable dispute; (3) the error affected the appellant’s
       substantial rights, which in the ordinary case means it affected the
       outcome of the district court proceedings; and (4) the error seriously
       affects the fairness, integrity or public reputation of judicial
       proceedings.

Id. (quoting United States v. Marcus, 560 U.S. 258, 262 (2010) (alterations and

internal quotation marks omitted)).

      Williams has failed to demonstrate error, let alone plain error. Significantly,

when instructing the jury on attempt, the district court stated that the government


                                         5
must prove that the “defendant intended to commit the crime charged.” App’x at

802. That instruction is consistent with the requisite mental state for intentional

arson and not for reckless arson.

      Even if we assume, arguendo, there was error, Williams has not shown that

he was in any way prejudiced by it. In United States v. Ferguson, 676 F.3d 260, 277

(2d Cir. 2011), we stated that a defendant would not be prejudiced by a district

court’s error in instructing the jury on a potential theory of liability if “the jury

would have necessarily found the defendant[] guilty on one of the properly

instructed theories of liability.” Here, the evidence at trial overwhelmingly

supported a completed arson. The dispute between the parties centered on the

identity of the perpetrator and not on the nature of the crime: video footage

showed an individual used a tire iron to smash the window of the store and tossed

two lit Molotov cocktails inside. From this the jury would have necessarily found

that Williams was guilty of a completed—and not an attempted—arson.

      Second, Williams argues that New York’s ban on Molotov cocktails made it

impossible for him to comply with the federal law mandating registration. His

argument is foreclosed by United States v. Shepardson, 167 F.3d 120, 123‐24 (2d Cir.

1999), where we found that in the absence of a federal statutory ban on the
                                         6
unregistered weapon, registration is not impossible. In fact, the testimony at trial

in the instant case confirmed that Molotov cocktails had been registered before in

the National Firearms Registration and Transfer Record.

      Third, Williams argues that the district court erred in denying his motion to

suppress the custodial statements he made to law enforcement. He claims the

officers’ trickery, combined with his lack of sleep and the length of the

interrogation, made his statements involuntary under the Fifth Amendment. We

disagree.

      In reviewing the denial of a suppression motion, this Court “review[s] the

district court’s factual findings for clear error, and its application of law to fact de

novo.” United States v. Pabon, 871 F.3d 164, 173 (2d Cir. 2017). When the district

court’s findings are based on credibility determinations, “we give particularly

strong deference to a district court finding.” United States v. Iodice, 525 F.3d 179,

185 (2d Cir. 2008). This Court is “not allowed to second‐guess the factfinder’s

credibility assessments, and where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.”

United States v. Medunjanin, 752 F.3d 576, 584‐85 (2d Cir. 2014) (internal quotation

marks, alteration, and citation omitted). At the suppression hearing, the district
                                           7
court had the opportunity to evaluate Williams’s demeanor in watching a video of

the interrogation, and it also heard the testimony of one of the officers. After

reviewing the video and the testimony, we find that the district court did not abuse

its discretion in determining that the interrogation did not rise to the level of a

constitutional violation.

      Last, Williams argues that the district court erred in overstating his criminal

history at sentencing. He contends that the district court procedurally erred by

including his conviction for falsely reporting an incident in the third degree under

New York Penal Law § 240.50 in his criminal history because it is similar to an

offense the Guidelines exclude from consideration—providing false information

to a police officer. See U.S.S.G. § 4A1.2(c)(1). We need not decide whether this was

error because even if that conviction were excluded, Williams’s criminal history

category—and therefore his recommended Guidelines range—would not change.

Any error by the district court was therefore harmless. We also conclude that the

district court did not otherwise err in calculating Williams’s criminal history.

                                 CONCLUSION

      For the foregoing reasons, the judgment of the district court is hereby

AFFIRMED.

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 1   GUIDO CALABRESI, Circuit Judge, concurring:

 2   I join the Court’s opinion in full. I write separately to point out two peculiarities in
 3   our Court’s U.S.S.G. § 4A1.2(c)(1) jurisprudence. The first is that we have, perhaps
 4   unintentionally, given district courts an incentive to engage in fact‐finding
 5   regardless of whether a defendant’s state statute of conviction makes criminal a
 6   broad or narrow class of conduct. Some of our prior cases suggest that we will
 7   deferentially review a district court’s determination as to whether an offense meets
 8   section 4A1.2(c)(1)’s similarity requirement whenever the district court engages in
 9   fact‐finding about the particular characteristics of the defendant or the defendant’s
10   offense—such as by examining the uncharged conduct underlying the offense. See,
11   e.g., United States v. Valente, 915 F.3d 916, 921–22 (2d Cir. 2019). But if we must defer
12   to the district court’s fact finding regardless of the actions that the relevant state
13   statute’s text makes criminal, district courts could base their decisions on a
14   defendant’s individual characteristics and make de novo review of the issue as a
15   matter of law virtually impossible. This would be in tension with some of our
16   holdings. See, e.g., United States v. Sanders, 205 F.3d 549, 553–54 (2d Cir. 2000) (a
17   New York Penal Law § 165.15(3) conviction for turnstile jumping does not, as a
18   matter of law, count under U.S.S.G. § 4A1.2(c)).

19   While I have no doubt that district courts will do their best to apply our standard
20   for whether a state statute is broad or narrow, the error mentioned above comes
21   about because our standard on this point is unclear. This case presents a perfect
22   example. As Judge Park notes in concurrence, New York Penal Law § 240.50, taken
23   as a whole, may well be a broad statute, able to be committed in various ways. But
24   Williams was manifestly convicted of violating a particular subsection of a
25   subsection of that statute, New York Penal Law § 240.50(3)(a).1 And this subsection
26   punishes only “[g]ratuitously report[ing] to a law enforcement officer or agency []

     1While Williams’ PSR originally stated only that he had been convicted of New York
     Penal Law § 240.50, by the time of Williams’ sentencing the probation officer had
     obtained the police report and judgment of conviction underlying this offense and
     provided those documents to the court. See App’x 901. Those documents clarified that
     Williams was convicted solely of New York Penal Law § 240.50(3)(a).
 1   the alleged occurrence of an offense or incident which did not in fact occur.” The
 2   action punished by the text of this subsection, falsely reporting an incident to law
 3   enforcement, is essentially indistinguishable from Guideline § 4A1.2(c)’s
 4   “[p]roviding false information to a police officer.” A conviction for this, under the
 5   Guidelines, is expressly not to be included in a defendant’s criminal history.

 6   I do not decide today whether the district court should have considered only the
 7   statutory subpart of which Williams was convicted or whether it properly
 8   considered the broader statute. I note only that our precedents do not clearly
 9   demand either answer, and, as a result, the district court, by making factual
10   findings that would be appropriate under the broader statute, effectively made its
11   decision subject only to deferential review.

12   Second, I note that our “due deference” standard in these cases may no longer be
13   on firm constitutional footing. Our original decision to give “due deference” in
14   this instance derived from a statutory mandate. See United States v. Morales, 239
15   F.3d 113, 118 (2d Cir. 2000); 18 U.S.C. § 3742(e). But the Supreme Court found that
16   statute, and its “due deference” requirement, unconstitutional. See United States v.
17   Booker, 543 U.S. 220, 245 (2005). We have not since Booker reexamined whether the
18   “due deference” standard—now that it is separated from its unconstitutional
19   origins—is the appropriate one in the peculiar context of this Guideline. We have
20   reaffirmed that the due deference standard is generally appropriate when we are
21   called to review a district court’s application of facts to the Guidelines. See United
22   States v. Agudelo, 414 F.3d 345, 348 (2d Cir. 2005). And I do not for a moment
23   suggest that we revisit that general proposition. It is only in the context of the
24   “similar to” inquiry, where, as I have described above, our precedents may
25   provide district courts with the choice, and thus an incentive, to convert a question
26   of law reviewed de novo into a mixed question of fact and law reviewed
27   deferentially, that I think the appropriateness of the due deference standard may
28   be in question.

29   Nevertheless, I join today’s opinion, and leave both these questions for another
30   day, when they are necessary to the disposition of a case before us.
 1   MICHAEL H. PARK, Circuit Judge, concurring:

 2   I join the Court’s opinion in full. I write separately for two reasons: (1) to note
 3   that I would affirm the district court’s inclusion of Williams’s prior conviction in
 4   his criminal history at sentencing; and (2) to respond to Judge Calabresi’s
 5   concurrence.

 6   First, falsely reporting an incident in the third degree under New York Penal
 7   Law § 240.50 is broad and can be committed in various ways. As a result, the
 8   district court appropriately looked to Williams’s underlying conduct and
 9   determined that it was distinct from crimes that should not be considered part of
10   a defendant’s criminal history under the Guidelines.1 See U.S.S.G. § 4A1.2(c)(1).
11   In United States v. Morales, 239 F.3d 113 (2d Cir. 2000), we held that when “a
12   statute punishes a range of conduct under [a] broad rubric . . . the comparison
13   contemplated by section 4A1.2(c) must focus on the particular conduct of the
14   defendant.” Id. at 118. And because the sentencing judge making the
15   comparison is applying the Guidelines to the facts, we give “due deference” to
16   the district court, which considered the conduct underlying Williams’s previous
17   conviction and applied the approach articulated by this Court. See id.; see also
18   U.S.S.G. § 4A1.2 cmt. n.12(A). Thus, although the Court affirms the district
19   court’s sentencing of Williams on harmless‐error grounds, I note that there was
20   no error, harmless or otherwise.



     1 Judge Calabresi notes that the district court could have limited its review to the text of § 240.50(a)(3)
     instead of analyzing Williams’s underlying conduct because he was “manifestly convicted of violating
     [that] particular subsection.” But the Presentence Report (“PSR”) did not specify which subsection
     Williams had violated or the underlying conduct, and stated only that he was convicted of falsely
     reporting an incident in the third degree. See PSR ¶ 93; United States v. Morales, 239 F.3d 113, 118 (2d Cir.
     2000) (“Typically, the pre‐sentence report will sufficiently acquaint the sentencing judge with the
     circumstances of the prior offense.”). In light of the PSR, the district court followed our instruction to
     “focus on the particular facts” when faced with a broad statute and noted that, based on the incident
     report, “[i]t’s very clear in reviewing this information that this was much more than just falsely reporting
     an incident to a police officer.” App’x at 903. The court considered the facts that Williams had staged a
     burglary of the store at which he was employed, had stolen money from the store, and then had altered
     the store’s video surveillance tape to conceal his activities, all of which demonstrated a “level of
     culpability [that] is significantly different” than simply reporting false information to a police officer. In
     my view, it was perfectly reasonable—and as Judge Calabresi acknowledges, entirely consistent with our
     precedents—for the district court to examine Williams’s underlying conduct.
 1   Second, Judge Calabresi expresses concern about the latitude given to district
 2   courts in determining whether a prior offense is similar to one listed in U.S.S.G
 3   § 4A1.2(c)(1). But our precedents clearly distinguish between “minor offenses
 4   that [are] narrow in scope,” in which case the decision whether to include a prior
 5   offense is reviewed de novo, and situations where “a statute punishes a range of
 6   conduct,” in which case the sentencing judge’s application of the Guidelines to
 7   the facts of the underlying conduct is to be given “due deference.” Morales, 239
 8   F.3d at 117–18. I respectfully disagree with the suggestion that district courts
 9   may feel incentivized to misapply this standard and “to engage in fact‐finding”
10   in an effort to evade de novo review.

11   Finally, Judge Calabresi observes that the standard of “due deference” in these
12   cases “may no longer be on firm constitutional footing.” But we have
13   consistently recognized that the due‐deference standard in Guidelines‐
14   application cases “continue[s] to apply even after Booker.” United States v.
15   Agudelo, 414 F.3d 345, 348 (2d Cir. 2005) (citing United States v. Garcia, 413 F.3d
16   201, 221–22 (2d Cir. 2005)). This case presents no reason to revisit well‐settled
17   law nearly 15 years after Booker. “Due deference” remains the appropriate
18   standard of review when district courts examine a defendant’s conduct to
19   determine whether it was “similar to” crimes that should not be considered part
20   of a defendant’s criminal history under the Guidelines.

21
