                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         JUN 7 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-30089

                Plaintiff-Appellee,             D.C. No.
                                                2:17-cr-00138-RAJ-1
 v.

NALEN PIERRE WILLIAMS,                          MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Richard A. Jones, District Judge, Presiding

                              Submitted June 3, 2019**
                                Seattle, Washington

Before: D.W. NELSON, RAWLINSON, and BEA, Circuit Judges.

      Defendant-Appellant Nalen William was convicted of being a felon in

possession of a firearm, and for possession of heroin with intent to distribute. He

appeals the district court’s sentence of 52 months—15 months above the high end

of the U.S. Sentencing Guidelines (U.S.S.G. or “the Guidelines”) range—and


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
seeks remand for resentencing. We review the district court’s factual findings for

clear error, United States v. Kaplan, 839 F.3d 795, 804 (9th Cir. 2016). Because we

find the defendant’s arguments unpersuasive, we affirm the district court’s

sentence of 52 months. We remand for the limited purpose of allowing the district

court to correct the Statement of Reasons form.

      1. The district did not make improper factual findings when fashioning the

defendant’s sentence. First, the district court’s observation that the defendant and

his brother “aggressively and violently killed another human being” is supported

by the record. Regardless of who dealt the deadly blow, it’s undisputed that the

defendant and his brother used crude weapons—a shovel and a pitchfork—to target

and attack another person. Defense counsel even agreed with this high-level

description of the defendant’s conduct. Similarly, the district court’s second

observation—that the attack was the result of a drug deal gone bad and that the

defendant and his brother had options other than attacking the victim—is supported

by the record, including an opinion by the Court of Appeals of Washington

upholding the defendant’s murder conviction. See State v. Williams, 97 Wash.

App. 1002 (1999).

      Finally, the district court made these observations in the context of

discussing the defendant’s history of violence. It was this history of violence that

informed the district court’s decision to fashion a sentence 15 months above the


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Guidelines range. To the extent the district court did engage in fact finding, a

preponderance of the evidence supported the findings of facts related to the

defendant’s sentencing. See United States v. Treadwell, 593 F.3d 990, 1000 (9th

Cir. 2010) The district court did not commit clear error.

      2. The district court did not err when it included the defendant’s second-

degree murder conviction to calculate his criminal history score. First, the

defendant did not raise this issue during the sentencing hearing. We review issues

raised on appeal that were not presented to the district court for plain error. See

United States v. Lloyd, 807 F.3d 1128, 1139–40 (9th Cir. 2015). Second, a

defendant cannot attack a state court conviction during a federal sentencing

proceeding unless the claim is that the conviction is the result of a violation of the

defendant’s right to appointed counsel. See Custis v. United States, 511 U.S. 485

(1994); USSG § 4A1.2 Application Note 6. That is not the case here. Rather, the

defendant claims that we should ignore his state court conviction because an

intervening Washington Supreme Court decision held, as a matter of statutory

interpretation, that the language of the second-degree murder statute under which

he was convicted precludes assault as a predicate felony for second-degree murder.

See In re Personal Restraint Petition of Shawn Andress, 147 Wash. 2d 602 (2002).

While the defendant’s underlying argument as to the validity of this state court

conviction likely has merit, his remedy lies in state court. The district court,


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therefore, did not commit plain error because its decision did not seriously affect

the fairness, integrity, or public reputation of the proceedings. Lloyd, 807 F.3d at

1139.

        3. During the sentencing hearing, the district court announced a total offense

level of 15, a criminal history category of IV, and a Guidelines rage of 30 to 37

months. The defendant did not object, nor did he ask for a downward departure

under USSG § 4A1.3. Accordingly, this was the district court’s final Guidelines

calculation. Any discussion about the appropriate sentence after this announcement

was made pursuant to the district court’s responsibility to consider the factors in 18

U.S.C. § 3553(a). After considering the Section 3553(a) factors, the district court

found that the defendant’s history of violence warranted a 15-month upward

variance. The defendant has not persuaded us that this sentence was unreasonable.

See United States v. Ellis, 641 F.3d 411, 421 (9th Cir. 2011).

        4. The oral pronouncement of a sentence controls if there is a discrepancy

between the oral pronouncement and the written judgment. See United States v.

Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015). An error in the written judgment

does not warrant remand for resentencing. Id. Moreover, the Statement of Reasons

form is not part of the judgment. See 28 U.S.C. § 994(w)(1)(B); see also Pub. L.

No. 111–174, § 4, 124 Stat. 1216, 1216 (May 27, 2010). Since an error in the

written judgment does not warrant resentencing, neither does a discrepancy on the


                                           4
Statement of Reasons form. Accordingly, we remand so that the district court can

make the Statement of Reasons form consistent with the oral pronouncement.

Hernandez, 795 F.3d at 1169.

      We REMAND with an instruction to amend the Statement of Reasons form

to conform with the oral pronouncement of the sentence; otherwise, we AFFIRM.




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