                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-27-2007

USA v. Williams
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2402




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                                              NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 06-2402


         UNITED STATES OF AMERICA

                          v.

             SEBASTIAN WILLIAMS,

                                  Appellant




   On Appeal from the United States District Court
            for the District of New Jersey
               (D.C. No. 02-cr-00935-2)
      District Judge: Hon. Garrett E. Brown, Jr.


     Submitted under Third Circuit LAR 34.1(a)
                on March 29, 2007


Before: FISHER, JORDAN and ROTH, Circuit Judges

              (Filed: August 27, 2007)




                   OPINION
ROTH, Circuit Judge:

       Sebastian Williams appeals the judgment of sentence imposed on him by the United

States District Court for the District of New Jersey. He asserts violations of his Sixth

Amendment right to a jury trial and his Fifth Amendment right to Due Process. Williams

also asserts that the District Court erred in applying certain sentencing enhancements under

the now-advisory Guidelines. Because the District Court satisfied the requirements we set

forth in United States v. Cooper, 437 U.S. F.3d 324 (3d Cir. 2006), and because Williams’s

constitutional claims are foreclosed, we will affirm.

I. Background and Procedural History

       This case arose from a conspiracy to rob armored trucks that were transporting cash

to and from various retail stores and banks. The conspiracy, which involved appellant

Sebastian Williams, co-defendant Louis Hyman, and conspirators Kevin Henry and Dwayne

Jones, involved two separate robberies. The first one occurred in March 2002. Williams and

Hyman posed as construction workers and successfully held up the armored truck driver.

The presentence report states that either Williams or Hyman, or possibly both of them, was

armed. The second robbery occurred five months later, in August 2002. Williams was

supposed to function as the “get-away” driver, but the plan was foiled and a shootout

between an armed security guard and Williams’s co-conspirators ensued, resulting in the

arrest of all four conspirators.

        Williams was charged with two counts of conspiracy to rob an armored truck in



                                             2
violation of 18 U.S.C. § 1951 (the Hobbs Act). He was also charged with one count of using

and carrying a firearm in connection with the first robbery, in violation of 18 U.S.C. §

924(c)(1)(A)(ii). In March 2003, Williams was convicted by a jury on all three counts.

       Williams was originally sentenced before the Supreme Court decided United States

v. Booker, 543 U.S. 220 (2005). With a total offense level of 31, Williams faced a

Guidelines range of 135 to 168 months imprisonment. The District Court sentenced

Williams under the then-mandatory Guidelines to 140 months on each of the two robbery

counts, to be served concurrently. Williams received an additional mandatory sentence of

84 months imprisonment for the § 924(c) conviction, to be served consecutively, for a total

term of 224 months imprisonment, followed by three years of supervised release. The court

also ordered Williams to pay $650,896.55 in restitution.

       Williams appealed. In May 2005, we affirmed the convictions but vacated and

remanded for resentencing in light of Booker. At resentencing, the District Court referred

to and agreed with the factual findings it had made at the original sentencing hearing to arrive

at the same now-advisory Guideline range of 135 to 168 months. The District Court then

considered the 18 U.S.C. § 3553(a) factors. Citing Williams’s “history of recidivism,” the

court imposed the same sentence as before, finding a total term of 224 months to be

“necessary,” “reasonable,” and “sufficient,” given the various factors surrounding the case.

       Williams timely appealed.




                                               3
II. Jurisdiction and Standard of Review

       The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have

appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       For questions of law, including the constitutionality of a guideline’s application, we

review the matter de novo. United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir. 2005). We

exercise plenary review over the District Court’s interpretation of the Sentencing Guidelines.

United States v. Newsome, 439 F.3d 181, 184 (3d Cir. 2006). Additionally, we review

underlying factual determinations made by the District Court for clear error. United States

v. Tupone, 442 F.3d 145, 149 (3d Cir. 2006).

III. Discussion

       A. Jury Trial Right

       Williams contends that, in light of Booker, sentencing facts found by the District

Court should have been found by the jury beyond a reasonable doubt. However, in Cooper,

we held that “[a]s before Booker, the standard of proof under the guidelines for sentencing

facts continues to be preponderance of the evidence.” United States v. Cooper, 437 F.3d 324,

330 (3d Cir. 2006). Therefore, the District Court’s factfinding by a preponderance of the

evidence as to Guidelines enhancements did not violate the Sixth Amendment.

       B. Due Process

       Williams contends that the ex post facto principles of the Due Process Clause were

violated by the District Court’s retroactive application of the remedial portion of the Booker



                                              4
opinion. Williams argues that he received a sentence for pre-Booker conduct that is above

the maximum applicable Guidelines range that could be established by the jury’s verdict.

This argument is foreclosed by our decision in United States v. Pennavaria, 445 F.3d 720 (3d

Cir. 2006), where we joined our sister circuits in holding that sentencing under the advisory

Guidelines does not violate ex post facto principles inherent in the Due Process Clause. Id.

at 724. Therefore, the District Court did not violate Williams’s rights under the Constitution.

       C. Enhancement for Intended but Unrealized Amount of Loss

       Williams claims that the District Court erred, after considering U.S.S.G. § 2B3.1 and

§ 2X1.1, in imposing a four-level sentence enhancement for the intended but unrealized loss

arising from the August 2002 robbery . We disagree.

       Williams argues that § 2B3.1(b)(7)(E) only allows for enhancements based on actual

loss incurred by the robbery. See § 2B3.1, Application Note 3. However, Williams was

convicted of conspiracy to violate 18 U.S.C. §1951 (Hobbs Act). Therefore, § 1B1.2(a)

instructed the District Court to “refer to § 2X1.1 as well as the guideline referenced [sic] in

the Statutory Index for the substantive offense.” Under § 2X1.1, when a robbery is

unsuccessful, the amount of money intended to be stolen can be considered. The District

Court correctly examined § 2X1.1 as well as § 2B3.1. See United States v. Martinez, 342

F.3d 1203, 1205-6 (10th Cir. 2003) (§ 2X1.1 is applicable loss guideline for attempted bank

robbery); United States v. Diaz, 248 F.3d 1065, 1109 n.62 (11th Cir. 2001) (court correctly

referred to § 2X1.1 which provides that in an attempted theft, court should consider the value



                                              5
of the items the defendant attempted to steal).

       D. Enhancement for Co-Conspirator Brandishing Gun

       Williams argues that the District Court committed clear error by enhancing his

sentence pursuant to U.S.S.G. § 2B3.1(b)(2)(C) for brandishing a firearm. “Brandished”

means that “all or part of the weapon was displayed, or the presence of the weapon was

otherwise made known to another person, in order to intimidate that person, regardless of

whether the weapon was directly visible to that person.” U.S.S.G. § 1B1.1, Application Note

1(C).1 Williams alleges that this enhancement should not apply to him because there is no

evidence in the record that any co-conspirator brandished or possessed a weapon during the

August 2002 robbery.2 Williams’s claim, however, is contrary to the armored truck guard’s

testimony. At trial, the guard testified that he believed one of the attackers had a gun,

pointed it at him, and may have even fired the weapon. This testimony supported the District

Court’s finding that a gun was brandished by Williams’s co-conspirator.            Because

brandishing a gun was a reasonably foreseeable act in furtherance of a jointly undertaken

criminal activity, See U.S.S.G. § 1B1.3(a)(1)(B), the District Court properly enhanced

Williams’s sentence. Therefore, the District Court did not err by enhancing Williams’s




       1
       Section 2B3.1 incorporates U.S.S.G. § 1B1.1's definition of “brandished.” U.S.S.G.
§ 2B3.1, Application Note 1.
       2
        The government’s brief notes that this argument contradicts Williams’s assertions
that Jones, co-conspirator, had actually fired a weapon during the August robbery.

                                             6
sentence under U.S.S.G. § 2B3.1(b)(2)(C).3

       E. 18 U.S.C. 924(c)(1)(A)(ii) Enhancement

       Williams contends that his Sixth Amendment rights were violated when he was

sentenced to a consecutive seven-year term of imprisonment under § 924(c) for brandishing

the firearm. Williams contends that he should have received a five-year term instead, for

mere use or carrying of a firearm, as found by the jury. Williams’s claim lacks legal support.

In Harris v. United States, 536 U.S. 545 (2002), the Supreme Court held that brandishing or

discharging a firearm in violation of 18 U.S.C. § 924(c) are sentencing factors, rather than

elements of the offense, that a judge may find to increase a mandatory minimum sentence.4

Id. at 558.     The standard of proof under the guidelines for sentencing facts is a

preponderance of the evidence. Cooper, 437 F.3d at 330. Therefore, the District Court

properly enhanced Williams’s sentence.




       3
        Williams argues that even if the guard did see a gun, it must have been either a fake
gun or merely the hand of one of the conspirators. There is nothing in the record that even
remotely supports this claim. The guard’s sworn testimony shows that, while he was not
certain whether a gun had been discharged, he was certain he saw a gun.
       4
       Williams argues that Harris was overruled by Booker. Other Circuits have held
Harris has not been overruled. See e.g. United States v. Dare, 425 F.3d 634, 641 (9th Cir.
2005) (“We agree that Harris is difficult to reconcile with the Supreme Court’s recent Sixth
Amendment jurisprudence, but Harris has not been overruled.”); United States v. Jones, 418
F.3d 726, 732 (7th Cir. 2005) (“Under Harris, which the Supreme Court did not disturb in
Booker, imposition of the . . . mandatory minimum sentence for a violation of
924(c)(1)(A)(iii) . . . did not violate the Sixth Amendment.”).


                                              7
IV. Conclusion

     For the foregoing reasons, we will affirm the judgment of sentence.




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