     Case: 09-30528    Document: 00511235694        Page: 1     Date Filed: 09/16/2010




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

                                                 FILED
                                                                     September 16, 2010

                                     No. 09-30528                        Lyle W. Cayce
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,
v.

BYRON LADELL WILLIAMS,

                                                 Defendant - Appellant.




                    Appeal from the United States District Court
            for the Eastern District of Louisiana, New Orleans Division




Before JONES, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit
Judges.
JENNIFER WALKER ELROD, Circuit Judge:
        Defendant-Appellant Byron Ladell Williams appeals his conviction of
illegal possession of a “Masterpiece MAC-9mm”-style assault rifle in violation of
18 U.S.C. § 922(g)(1)1 and his corresponding 108-month prison sentence,
reflecting an upward variance from the Sentencing Guidelines range. Williams
contends that: (1) the district court erred in admitting into evidence prior acts
that were irrelevant to the charge or unduly prejudicial in violation of Federal

       1
         “It shall be unlawful for any person—(1) who has been convicted in any court of, a
crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or
affecting commerce, any firearm or ammunition . . . .” 18 U.S.C. § 922(g)(1).
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                                  No. 09-30528

Rule of Evidence 404(b); (2) the district court abused its discretion under Federal
Rule of Evidence 403 by admitting a recorded telephone conversation that was
irrelevant to the case; and (3) the district court committed plain error by
considering Williams’s bare arrest record as a basis for an upward variance from
the Sentencing Guidelines range in determining his sentence. For the reasons
set forth below, we AFFIRM both Williams’s conviction and sentence.
                        I. FACTUAL BACKGROUND
      On Sunday, March 30, 2008, New Orleans Police Department Officers
Brian Sullivan and Joseph Lusk were patrolling the parking lot of the Hollypark
apartments (where several previous crimes had occurred) when they spotted a
double-parked car with tinted windows. At least two individuals were inside the
vehicle, one in the driver’s seat and the other in the passenger seat directly
behind the driver’s seat.   Some evidence introduced at trial indicated that a
third person, Kendrick McGee, was in the passenger seat at the time the police
first spotted the vehicle but fled before they approached it. As Sullivan’s police
cruiser approached the vehicle, Sullivan observed the rear passenger, Williams,
duck down, presumably to avoid detection. Moments later, Sullivan exited his
cruiser and approached the car. At that point, the rear-seat passenger appeared
to lean down and reach between his feet, and suspecting that the passenger was
reaching for a gun, Sullivan pulled open the car door, ordered the passenger out
of the car, and turned him over to Officer Lusk.
      When Sullivan returned to the vehicle, he peered in through the still-open
car door and observed a black semi-automatic MAC-9mm in plain view on the
rear, driver’s-side floorboard. Before Sullivan could secure the weapon, Williams
attempted to flee the scene but was quickly reapprehended, handcuffed, and
placed in the back of the police cruiser. Sullivan then resumed his investigation
of the weapon and determined that it was loaded with twenty-six bullets and
had its safety switch taped in the “fire” position. The driver, Robert Anderson

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(who was still in the car) told Sullivan that he and Williams were at the
Hollypark apartments to meet a resident, that he had picked up Williams a half-
hour earlier, and that he knew nothing about the gun.2 After being read his
Miranda warnings, Williams admitted that he was a convicted felon, and the
conviction was confirmed through a computer check. Williams explained that
the gun was not stolen and that he was holding it for a person named Raven.
Nonetheless, he was charged in a one-count indictment of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g).
       Prior to trial, the government moved to introduce, under Federal Rule of
Evidence 404(b), evidence that Williams had been arrested on four separate
occasions for possessing a firearm. The government urged that this evidence
would be used to prove (1) that Williams knowingly possessed a firearm, (2)
intent under a theory of constructive possession, and (3) absence of mistake or
accident. Williams disputed the admissibility of that evidence, contending that
the arrest and conviction records were not probative of his guilt and that the
prejudicial impact of admitting the evidence greatly exceeded its probative value.
The district court granted the government’s motion in part, allowing the
government to admit evidence regarding two of his arrests for firearm
possession. Accordingly, the government presented evidence that Williams was
arrested for possession of a firearm while in possession of illegal narcotics
following an incident in which he threw a gun into shrubbery near an apartment
building while fleeing from a vehicle wrecked in a high-speed chase. It also
presented evidence of Williams’s arrest for possession of a firearm with an
obliterated mark and felon in possession of a firearm where, following a high-
speed chase, police found an assault rifle leaning against the center console of


       2
         With the exception of the firearm, Sullivan’s search of the vehicle revealed only a cup
containing frozen daiquiri on the passenger-side floorboard. Williams admitted that the
daiquiri was his and was thus issued a citation for violating the open-container law.

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the car from which Williams had fled. The government entered these instances
of similar criminal conduct through the testimony of Wesley Humbles, an officer
of the New Orleans Police Department, and Glen Webber, an officer of the
Jefferson Parish Sheriff’s Office. Prior to the introduction of that evidence, the
court instructed the jury that the evidence could be considered only for purposes
of determining “if the defendant had the motive, state of mind, or the intent to
commit the crime charged in the indictment, or to show the defendant’s absence
of mistake or accident.”
      The government also introduced eight recordings of jailhouse calls between
Williams and various persons including his mother and McGee. The government
alleged that these calls supported the testimony of Officer Sullivan and that
Williams had admitted that he handled the gun and attempted to hide it before
the officers approached. The defense objected to the admission of the final
recorded telephone call (“Track 8”) between Williams and his mother as unduly
prejudicial under Rule 403. On the recording, Williams’s mother discussed her
efforts to find Anderson and convince him to testify at Williams’s trial. On the
recording, she told Williams that she had enlisted McGee’s help in getting
Anderson to testify, and that she and McGee would “make sure [Anderson] do
it.” Williams assented to this plan. The government justified admitting the
evidence on the grounds that Track 8 was relevant to identifying McGee, whose
number was mentioned in the phone call, and clarifying his role in order to
determine the ultimate issue of whether Williams possessed the firearm. The
defense objected that the evidence was unduly prejudicial because it was
cumulative of other evidence admitted for the purpose of identifying McGee and
served only to suggest witness intimidation. The court admitted the call, but
ordered the government not to argue that the call itself suggested any improper
conduct.



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        At the close of the three-day trial, the district court called a charge
conference and issued jury instructions on actual, constructive, sole, and joint
possession. The defense did not object to the instructions, and the jury returned
a guilty verdict on the single-count indictment. Williams made a post-judgment
motion for acquittal on the basis that the government had not proven Williams’s
“knowing and intentional possession” of the gun, but the district court denied the
motion.
        The district court conducted a sentencing hearing in June 2009 to receive
evidence in support of the government’s motion for an upward departure on the
basis that Williams’s criminal history was under-represented by the Guidelines.
It   also   considered    Williams’s     objection    to   the   Pre-Sentence      Report’s
recommendation that he receive a two-level enhancement for obstruction of
justice based on the conversation recorded on Track 8.                  The government
submitted testimony regarding Williams’s five prior gun-possession arrests, for
which there were no convictions, along with testimony regarding Williams’s
arrest for second-degree murder.
        The court granted the defense’s objection to the enhancement for
obstruction of justice and denied the government’s motion for an upward
departure based on the under-representation of criminal history. However, the
district court granted an upward variance pursuant to 18 U.S.C. § 3553(a), citing
several factors including the serious nature of Williams’s offense, his prior
arrests for possession of a weapon for which the government provided
testimony,3 his prior convictions, and the fact that he committed the instant
offense while on parole. In determining the need “to protect the public from
further crimes of the defendant,” § 3553(a)(2)(C), the court additionally


       3
         The government called witnesses to establish Williams’s prior arrests for gun
possession, for which there were no convictions, and to establish his involvement in a murder
for which he had been arrested, but not convicted.

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considered that Williams had accumulated, over a short time-span, twenty-two
arrests not resulting in convictions. Based on the § 3553(a) factors, the district
court rejected the 51-to-63-month guideline range as inadequate and sentenced
Williams to 108-months imprisonment.
      Williams has filed a timely appeal, challenging the admission of evidence
of two of his prior arrests and Track 8, and also the district court’s consideration
of his arrest record in imposing the 45-month upward variance.
                               II. DISCUSSION
A. Admission of Rule 404(b) Evidence
      In United States v. Beechum, we established a two-prong test for
determining if evidence of a defendant’s prior wrongs is admissible under
Federal Rule of Evidence 404(b): such evidence is admissible only if (1) it is
relevant to an issue other than the defendant’s character, and (2) its probative
value is not substantially outweighed by undue prejudice to the defendant, and
the evidence meets the other requirements of Rule 403. Beechum, 582 F.2d 898,
911 (5th Cir. 1978) (en banc). Williams alleges that the district court’s decision
to admit evidence regarding two of his prior arrests for gun possession violated
both prongs of this test. He first contends that the evidence was relevant to his
character alone because the case was one of actual possession—a theory for
which such convictions would be irrelevant. Second, he alleges that the evidence
failed to satisfy the second prong of the Beechum test, which requires that Rule
404(b) evidence “possess probative value that is not substantially outweighed by
its undue prejudice” in accordance Rule 403. Id.
      i.    Standard of Review
      “Generally, we review a trial court’s decision to admit evidence for abuse
of discretion.” United States v. Akpan, 407 F.3d 360, 373 (5th Cir. 2005) (citation
omitted). But where the defendant did not object to the evidence on the basis
presented on appeal, we review the district court’s evidentiary ruling for plain

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error. See United States v. Burton, 126 F.3d 666, 671 (5th Cir. 1997). With
regard to Williams’s first point of error, the government contends that plain-
error review is required because Williams’s attorney never objected to the Rule
404(b) evidence on the ground that the government’s case was solely one of
actual possession. Conversely, Williams insists that the proper standard is
abuse of discretion. We need not resolve which standard is appropriate because,
as we explain below, the evidence was properly admitted as relevant to an issue
other than his character. Beechum, 582 F.2d at 911. Williams raised his undue
prejudice objection during trial, so we review the court’s Rule 403 ruling for clear
abuse of discretion. See United States v. Fields, 483 F.3d 313, 354 (5th Cir.
2007).
      ii.   Relevance of Rule 404(b) Evidence to an Issue Other than
            Character
      A bedrock principle of the Federal Rules of Evidence is that “relevant
evidence is admissible except as otherwise provided.” United States v. Jones,
484 F.3d 783, 786 (5th Cir. 2007) (quoting Fed. R. Evid. 402). Under Rule
404(b), evidence of a person’s crimes, wrongs, or other acts is “not admissible to
prove the character of a person in order to show action in conformity therewith.”
But where there is some justification “for receiving evidence of the nature of
prior acts on some issue other than status (i.e. to prove . . . knowledge, identity,
or absence of mistake or accident . . . ), Rule 404(b) guarantees the opportunity
to seek its admission.” Old Chief v. United States, 519 U.S. 172, 190 (1997)
(internal quotation marks and citation omitted).
      In the context of a weapon-possession case, Rule 404(b) evidence of intent
is relevant to a theory of constructive possession, but not to a theory of actual
possession. See Jones, 484 F.3d at 788. To demonstrate constructive possession,
the government must show that the defendant exerted ownership, dominion, or
control over an object, or over the premises where the object was found. See

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United States v. Torres, 114 F.3d 520, 524 (5th Cir. 1997).                 Evidence of
knowledge and intent is critical in constructive-possession cases, as “[a]
defendant will often deny any knowledge of a thing found in an area that is
placed under his control (e.g., a residence, an automobile) or claim that it was
placed there by accident or mistake.”              Jones, 484 F.3d at 788.            The
“‘paradigmatic constructive possession scenario’” in which contraband is found
under the defendant’s seat in a car presents “‘a classic case for introducing prior
instances of gun possession, since the government would otherwise find it
extremely difficult to prove that the charged possession was knowing.’” Id. at
790 (quoting United States v. Garner, 396 F.3d 438, 442-43 (D.C. Cir. 2005)). By
contrast, such evidence is not relevant under an actual possession theory
because the government must show only that the defendant was aware that “(1)
he physically possesses the thing, and (2) the thing he possesses is contraband.”
Id. at 788.4
       This distinction between the evidentiary requirements for actual and
constructive possession formed the basis of our holding in United States v.
Jones—that the trial court erred by admitting the factual basis of a defendant’s
prior firearm-possession arrest because the government’s case could support only
a finding of actual possession, not constructive possession. See Jones, 484 F.3d
at 790-91. Williams contends that Jones compels the same result here, as “the
instant prosecution was based on actual possession” and “the evidence did not
support a conviction based on constructive possession.” Because the government
provided sufficient evidence to support a theory of constructive possession in this
instance, we find Jones to be inapposite.



      4
         Knowledge evidence is not relevant because generally, “where the government has
shown that the defendant had a firearm under his immediate physical control, any contention
that he did not know the nature of what he possessed is effectively precluded.” Jones, 484
F.3d at 788.

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      In Jones, we held that Rule 404(b) evidence could not be admitted to
support a theory of constructive possession where neither the testimony of the
government’s sole witness nor that of the defendant’s witness could support a
theory of constructive possession. See id. at 788-91. There, the government’s
sole witness, a police detective, testified that he saw the defendant possess an
object and toss it beneath a house, which the defendant did not own or occupy.
The police later retrieved a gun from that location. The defendant’s eyewitness
disputed that account, testifying that the defendant had never possessed the gun
and was not near the house. Id. at 785. Under these circumstances, we held
that the jury had a choice between two stories, neither of which supported a
theory of constructive possession.       If the jury disbelieved the detective’s
observation of actual possession while still believing that the officer followed the
defendant into the alley, the “credited facts would present neither a
‘paradigmatic constructive possession’ scenario (contraband found under
defendant’s seat in a car) nor a ‘classic case’ for introducing 404(b) evidence.” Id.
at 790. The jury would instead “be left with the picture of a man walking,
running, or standing next to a house that he did not own, rent, occupy, or
otherwise exercise any dominion over, underneath which a gun just happened
to be found”—evidence too weak to justify a conviction for constructive
possession. Id. Thus, it was error to admit the Rule 404(b) evidence in what was
“exclusively an actual possession case.” Id.
       Turning to the instant case, we cannot conclude that the government’s
case against Williams was exclusively one of actual possession because, unlike
in Jones, the government has presented sufficient evidence to support a theory
of constructive possession. Here, undisputed witness testimony established that
the gun was found under Williams’s seat in the vehicle—the “paradigmatic
constructive possession” scenario in which Rule 404(b) evidence is warranted.
Id. Williams insists that Jones nevertheless controls because the government

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also submitted evidence of actual possession, but the propagation of this
alternative theory in no way negates the government’s well-supported theory of
constructive possession.
      Nevertheless, Williams argues that the district court should have withheld
its ruling on the government’s Rule 404(b) motion until such a time that the
court could be certain that the government’s evidence would actually support a
theory of constructive possession. While this may have been a prudent decision
by the court in hindsight, no one at the pre-trial hearing put the court on notice
that the case could become solely one of actual possession. And though such
evidence would be inappropriate in that instance, we do not require our district
judges to be clairvoyant to avoid clear error.
      In any event, the evidence presented at trial bore out the propriety of the
district court’s pre-trial ruling. Williams’s argument that the government’s case
radically transformed into one of actual possession is thoroughly undercut by the
fact that any such transformation proved imperceptible at trial, even to the
defense.   The government introduced the Rule 404(b) evidence prior to its
introduction of the jailhouse recordings—the alleged actual-possession
evidence—so we agree that Williams could not have discovered a shift in the
government’s theory at the time his arrests came into evidence. But at the close
of the government’s case in chief, at which point the totality of the government’s
case had been fully revealed, Williams moved for acquittal without apprising the
court that the case had become one of actual possession. Rather, defense counsel
argued that the government had not met its evidentiary burden, but conceded
that the “best that the government has done” toward this end was presenting
Officer Sullivan’s testimony that he found the gun “in proximity to where Mr.




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Williams had sat.” Per defense counsel’s own words, the government’s strongest
case was for constructive possession.5
           In short, our review of the record reveals that, throughout trial, the
government’s theory of the case remained consistent with the description given
in the government’s pre-trial motion to admit evidence of Williams’s arrests
pursuant to Rule 404(b).            The evidence was relevant to the elements of
constructive possession, so the first prong of the Beechum test is satisfied.
       iii.    Rule 403 Balancing Test
       Williams argues, alternatively, that the probative value of the evidence
of his two arrests was substantially outweighed by the risk of unfair prejudice,
in violation of Rule 403 and the second prong of the Beechum test. See Beechum,
582 F.2d at 911. We review the district court’s Rule 403 ruling “giv[ing] great
deference to the court’s informed judgment and will reverse only after a clear
showing of prejudicial abuse of discretion.” United States v. Peden, 961 F.2d 517,
521 (5th Cir. 1992).
       “[T]he central concern of rule 403 is whether the probative value of the
evidence sought to be introduced is substantially outweighed by the danger of
unfair prejudice.” Beechum, 582 F.2d at 913 (internal quotation marks omitted).
There is no question that the probative value of the testimony regarding
Williams’s two arrests was great.               Prior acts, especially those involving
possession, are “highly probative” of a defendant’s intent. United States v.
Willis, 6 F.3d 257, 262 (5th Cir. 1993), overruled on other grounds by Bailey v.
United States, 516 U.S. 137 (1995). Both of Williams’s extrinsic offenses were




       5
        We also note that at the close of trial, the court issued jury instructions on both actual
and constructive possession, and the defense made no objection to the instruction on
constructive possession.

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factually similar to the instant case,6 indicating that he had both the knowledge
of the gun’s presence and the intent to exercise dominion over it—the same
intent and knowledge evinced in the extrinsic offenses.                     But while the
similarities between Williams’s extrinsic offenses and the charged crime
heightened the probative value of the evidence, they also increased the ever-
present risk of unfair prejudice by inferring propensity. See Beechum, 582 F.2d
at 915 & n.20; see also Old Chief v. United States, 519 U.S. 172, 182–83 (1997).
This danger is “particularly great where, as here, the extrinsic activity was not
the subject of a conviction.” Beechum, 582 F.2d at 914.
       We are nevertheless convinced that the evidence was properly admitted.
The district court issued appropriate limiting instructions to the jury both when
the evidence was admitted and later during the jury charge, tempering the risk
of unfair prejudice against Williams. Prior act evidence is often a necessity in
constructive possession cases, and Williams has not shown that the government
could have admitted alternative evidence of “substantially the same or greater
probative value but a lower danger of unfair prejudice.” Old Chief, 519 U.S. at
183. Accordingly, we conclude that the court did not abuse its discretion by
admitting the evidence.
B. Admission of Track 8
       Williams contends that the district court erred by admitting Track 8, a
recorded jailhouse conversation between Williams and his mother, Hilda
Williams, on the basis that the track improperly suggested that he had
intimidated one of his own witnesses to testify on his behalf. According to
Williams, the tape possessed virtually no probative value, and that any such
value was “substantially outweighed by the danger of unfair prejudice” arising

       6
         The factual circumstances of the two admitted arrests were strikingly similar to those
in the instant case. In each incident, Williams possessed a firearm while he was a passenger
in a vehicle, and he later attempted to create distance between himself and the firearm, either
by discarding it or by fleeing the vehicle and leaving the firearm inside.

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from the improper inference of witness intimidation. See Fed. R. Evid. 403.
Defense counsel properly objected to the admission of the conversation at trial
on that basis. “The standard for reviewing an alleged violation of Federal Rule
of Evidence 403 . . . is ‘especially high’ and requires a ‘clear abuse of discretion’
for reversal.” United States v. Setser, 568 F.3d 482, 495 (5th Cir. 2009). Any
error in admitting such evidence is subject to harmless error review, and
reversal is not required unless there is a “reasonable possibility that the
improperly admitted evidence contributed to the conviction.” United States v.
Mendoza-Medina, 346 F.3d 121, 127 (5th Cir. 2003) (internal quotation marks
and citation omitted), cert. denied, 130 S.Ct. 437 (2009).
      The court delayed ruling on Track 8 until after the jury heard seven prior
tracks of Williams’s conversations with Hilda Williams and McGee.               The
government argued that the previous seven tracks demonstrated that Williams
had discussed the circumstances of his arrest with both Hilda Williams and
McGee, and that Byron Williams recounted conflicting stories to them about
whether he had been in Anderson’s car immediately before his arrest. The
government sought to admit Track 8 to show that Byron Williams “agree[d] with
statements that his mother specifically ma[de]” and to show that both Anderson
and Kendrick had been in the car prior to the encounter with the police officer.
Defense counsel objected on the basis that the following exchange improperly
suggested that he and his mother had attempted to intimidate his witness,
Robert Anderson,7 the driver of the car in which Byron Williams was arrested:
      Byron [Williams]:         [S]o you had talked to both of them.
      Momma [Hilda]:            Yeah.
      Byron:                    I probably call him, so you had, so you
                                had talked to both of them.


      7
      Anderson was subpoenaed to testify for the defense, but he invoked his Fifth
Amendment right and did not testify.

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       Momma:                 Yeah, I talked to both of them and
                              Kendrick said he knew he was going to
                              make sure Rob handle this business. He
                              said we going, he going to handle it and I
                              said do you think he is going to do it and
                              Kendrick said, yeah, he’s going to do, we
                              going to make sure he do it.
The conversation occurred after defense counsel encountered difficulties locating
Anderson, and Hilda Williams had agreed to help find him. Because the jury
was not aware of these difficulties when the tape was played, Williams argues
that he was unfairly prejudiced because the jury could have interpreted the
conversation as a plan to intimidate Anderson into giving exculpatory
testimony.8
       Assuming arguendo that the evidence was improperly admitted, we do not
reverse because Williams has not demonstrated a reasonable possibility that the
admission of Track 8 contributed to his conviction. See Mendoza-Medina, 346
F.3d at 127.      We cannot say that the brief, vague exchange on Track 8
contributed to Williams’s conviction in light of the substantial evidence of
Williams’s guilt presented at trial. See United States v. Williams, 957 F.2d 1238,
1243 (5th Cir. 1992). Officer Sullivan testified that he saw Williams moving
suspiciously while he was seated in the vehicle, and Sullivan retrieved the
weapon immediately underneath the seat that Williams had occupied.
Williams’s prior arrests in similar circumstances indicated that he was aware
of the weapon and intended to possess it. His statements on Tracks 1–7, the
admission of which is not challenged here, likewise corroborated Sullivan’s
testimony.     Further, in his recorded conversation with McGee, Williams
admitted that he had attempted to hide the gun in Anderson’s car before he was


      8
         During sentencing, the government sought a sentencing enhancement for obstruction
of justice based on this exchange, but the district court denied the request. It found that
Williams’s attorney had tasked Williams’s mother with locating witnesses, and that she
carried out that duty without obstructing justice.

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apprehended.       This evidence is more than sufficient to support Williams’s
conviction, so any error by the district court in admitting Track 8 was ultimately
harmless.
C. Williams’s Sentencing Variance
       Williams contends that the district court erred by taking into account his
“bare arrest record”9 when it imposed a 108-month sentence, an upward variance
from the 51-to-63-month Sentencing Guidelines range. Williams did not raise
an objection below, so we review for plain error. United States v. Olano, 507 U.S.
725, 731-32 (1993). Consequently, Williams must demonstrate (1) the district
court committed error, (2) the error was plain or obvious, (3) the error affected
his substantial rights, and (4) the error “seriously affect[ed] the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 732 (citations and
internal quotation marks omitted).
       Whether a court commits error by considering “the mere fact [of a
defendant’s] prior arrests” in imposing an upward variance pursuant to 18
U.S.C. § 3553(a) is an issue of first impression in this circuit. See United States


       9
         The term “bare arrest record” comes not from our own precedent, but from the Third
Circuit’s decision in United States v. Berry, 553 F.3d 273, 284 (3d Cir. 2009). There, the Third
Circuit held that a district court committed plain error by increasing a defendant’s sentence
based on the court’s inference that he committed particular acts evidenced only by a handful
of arrest records that were uncorroborated by additional evidence. Id. In this circuit, it is
error for a district court to impose an upward departure based on the “mere fact of prior
arrests,” or “arrests, standing alone.” United States v. Jones, 444 F.3d 430, 434, 436 (5th Cir.
2006). These phrases have essentially the same meaning as the term “bare arrest record” —an
arrest for which the only evidence is an arrest record. Berry, 553 F.3d at 284; Jones, 444 F.3d
at 434, 436.
        Unlike “arrests, standing alone,” arrests that are corroborated by record evidence or
testimony may be considered in any event. See United States v. Lopez-Velasquez, 526 F.3d
804, 807 (5th Cir. 2008) (noting that the defendant’s arrests did not “stand alone,” and thus
were properly considered, where they were corroborated by additional record evidence).
However, the district court’s consideration of other, unrelated factors, such as the defendant’s
convictions for other acts, does not alleviate the error that the court commits by considering
the “mere fact” of a defendant’s arrests in imposing an upward departure; such additional
considerations go only to whether the error ultimately affected the defendant’s substantial
rights. See Jones, 444 F.3d at 436.

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v. Lopez-Velasquez, 526 F.3d. 804, 807 (5th Cir. 2008) (“[T]his court has not . . .
held that prior arrests may not be factored into a non-Guidelines sentence
pursuant to § 3553(a).”) (holding that the district court’s consideration of the
defendant’s arrests was not improper where those arrests were supported by
record evidence). Williams relies on this court’s precedent holding that it is error
for a district court to consider the “mere fact of [a defendant’s ] prior arrests” in
imposing an upward departure in support of his argument that it is likewise
error here. See United States v. Jones, 444 F.3d 430, 436 (5th Cir. 2006); see also
United States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007).
      In Jones, 444 F.3d at 434-36, we first considered the question of whether
a district court commits plain error by considering the “mere fact” of an arrest
in imposing an upward departure. We answered the question in the affirmative,
finding that the district court’s consideration ran afoul of two separate
Guidelines provisions: § 4A1.3(a)(1), which requires that an upward departure
based on the likelihood that the defendant will commit other crimes be
supported by “reliable information”; and §4A1.3(a)(3), which explicitly prohibits
a court from considering a prior arrest record in granting an upward departure.
See Jones, 444 F.3d at 436 (citing Williams v. United States, 503 U.S. 193, 200
(1992) (“[I]t is an incorrect application of the Guidelines for a district court to
depart from the applicable sentencing range based . . . on a factor that the
Commission has expressly rejected as an appropriate ground for departure.”)).
We did not vacate the sentence, however, because the defendant failed to show
that the error affected his substantial rights where (1) the sentence was
reasonable and (2) the district court’s consideration of numerous other factors
revealed no reasonable probability that his sentence would have been lower but
for the consideration of his arrests. See id.
      Relying on language from Jones stating that “[a]rrests, standing alone, do
not constitute reliable information under either the Guidelines or our precedent

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                                       No. 09-30528

pre-dating the Guidelines,” id. at 434 (citing United States v. Cantu-Dominguez,
898 F.2d 968, 971 (5th Cir. 1990); United States v. Labarbera, 581 F.2d 107, 109
(5th Cir. 1978)), Williams argues that the district court erred by recounting
Williams’s twenty-two arrests accumulated in a time-frame of only “five years
or so” in the course of evaluating whether the community would be imperiled by
Williams’s future crimes.10 Though we have not addressed whether the court’s
action would constitute error under our pre-Guidelines precedent, two of our
sister circuits have considered whether, even outside the context of an upward
departure, a sentencing court may properly consider conduct supported only by
an arrest record or a handful of arrest records and held that it may not. See
United States v. Berry, 553 F.3d 273, 284 (3d Cir. 2009) (holding that a district
court reversibly erred by increasing a defendant’s sentence on the basis of a
defendant’s “bare arrest record,” though the sentence imposed remained within
the Guidelines range); United States v. Zapete-Garcia, 447 F.3d 57, 61 (1st Cir.
2006) (holding that a district court reversibly erred by relying on the record of
a single prior arrest as justification for imposing an upward variance because
“arrest happens to the innocent as well as the guilty.”). But even these circuits
that have held that a court may not infer behavior from a single arrest or a small
number of arrests have recognized that an extensive pattern of arrests might
properly be considered.11


       10
         Apart from an additional note that Williams had been arrested seven times since
2005, the court made no references to arrests that were not also the subject of testimony or
record evidence during its lengthy discussion of the § 3553(a) factors.
       11
         See Zapete-Garcia, 447 F.3d at 61 (noting that, in the district court’s evaluation of
a sentence enhancement, “a series of past arrests might legitimately suggest a pattern of
unlawful behavior even in absence of any convictions.”); see also Berry, 553 F.3d at 284-85
(acknowledging that “there may be situations where the number of prior arrests, and/or the
similarity of prior charges to the offense of conviction, becomes so overwhelming and
suggestive of actual guilt that they become exceedingly difficult to ignore,” but declining to
decide “when the frequency and/or pattern of arrests becomes so egregious that it could
support a conclusion that the arrests are probative or prior criminality”); cf. United States v.

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                                      No. 09-30528

       Because our review here is for plain error, we need not resolve today
whether it is error for a district court to consider a defendant’s “bare arrest
record” in imposing a non-Guidelines sentence, or whether an extensive pattern
of arrests possesses greater evidentiary value than a single arrest record such
that it may be considered when the district court imposes a non-Guidelines
sentence. Even assuming arguendo that the court erred in considering his
arrests, we still must determine “[w]hether the consideration of prior arrests in
conjunction with other, permissible, factors affected [Williams’s] substantial
rights and whether, assuming it did, the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Jones, 444 F.3d at 436.
       Here, the district court’s lengthy and weighted discussion of other
significant, permissible factors belies Williams’s argument that the alleged error
affected his substantial rights. See United States v. Villegas, 404 F.3d 355, 364.
The district court preceded its analysis of the 18 U.S.C. § 3553(a) factors by
declaring that the maximum sentence in the guideline range was “woefully
inadequate” in light of his two prior adult felony convictions, his four juvenile
felony convictions, his commission of the instant offense while on probation, and
the fact that he was wanted in Texas for parole violations. In considering
Williams’s history and characteristics, the court noted that he had four separate
juvenile convictions that were unaccounted for in his criminal-history
calculation, including two convictions for the distribution of cocaine, a conviction
for simple burglary, and a conviction for unauthorized use of a motor vehicle.12



Walker, 98 F.3d 944, 948 (7th Cir. 1996) (reasoning that the defendant’s twenty-three arrests
were cumulatively probative of underlying criminal behavior, but holding that the court should
not have considered the pattern of arrests in the context of imposing an upward departure
because § 4A1.3 of the Guidelines expressly prohibits such considerations).
       12
          The court also emphasized the significance of a few of Williams’s arrests for which
the government had submitted testimony—his arrest for second degree murder and three
arrests for possession of a firearm, including one with an obliterated serial number.

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                                  No. 09-30528

The district court also relied heavily upon on his convictions—not the mere fact
of his arrests—in evaluating the remaining section 3553(a) factors. The court
found that a Guidelines sentence would not afford adequate deterrence to
criminal conduct because the light sentences he received for past convictions had
not deterred him from committing new crimes. Although the court took into
account the rate of Williams’s prior arrests in evaluating the need to protect the
community from further crimes, it gave significant consideration to the
egregious facts of the instant case: “the defendant had in his possession a [MAC]
9 millimeter semiautomatic handgun gun which contained a live round in the
chamber and a high capacity magazine loaded with 25 live rounds. The manual
safety on the weapon was held in the off position by electrical tape.”
      In summary, where the district court based its variance on Williams’s
multiple felony convictions, his persistence in committing crimes despite the
benefit of lenient sentencing, the brazen nature of his conviction for being a felon
in possession of a loaded MAC 9 millimeter semiautomatic handgun with the
safety disabled, and his arrests for similar crimes supported by testimony
presented at trial and at the sentencing hearing, Williams has not demonstrated
a reasonable probability that he would have received a lesser sentence but for
the court’s consideration of his “bare” arrest record. We also find that his
sentence is objectively reasonable because the § 3553(a) factors support it. See
United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008). The district court
thoroughly analyzed these factors, and its limited comment on his arrest record
does not impugn its conclusion that the significant variance was justified.
      Finally, we find that Williams has not satisfied the last factor of the plain-
error-review inquiry.     His single sentence of argument on this prong is
insufficient to demonstrate that the alleged error affected the fairness, integrity,
or public reputation of judicial proceedings.      See Olano, 507 U.S. at 732.
Accordingly, we affirm the sentence imposed by the district court.


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                             No. 09-30528

                           CONCLUSION
   For the foregoing reasons, we AFFIRM Williams’s conviction and sentence.




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