                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2000

United States v. Williams
Precedential or Non-Precedential:

Docket 99-5431




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Filed December 21, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-5431

UNITED STATES OF AMERICA

v.

DAVID WILLIAMS,

       Appellant

On Appeal from the United States District Court
For the District of New Jersey
(D.N.J. Crim. No. 98-cr-620-2)
District Judge: Honorable Garrett E. Br own, Jr.

Submitted under Third Circuit LAR 34.1(a)
Friday, November 17, 2000

Before: SLOVITER, AMBRO, and GARTH, Circuit Judges

(Opinion Filed: December 21, 2000)

       Alan D. Bowman, P.A.
       Suite 105, Gateway I
       Newark, New Jersey 07102

       Attorney for Appellant

       Robert J. Cleary, U.S. Attorney
       George S. Leone, Chief,
        Appeals Division
       Office of the U.S. Attorney
       970 Broad Street
       Room 700
       Newark, New Jersey 07102

       Attorneys for Appellee
OPINION OF THE COURT

GARTH, Circuit Judge:

Appellant David Williams ("Williams") appeals the District
Court's enhancement of his sentence in light of the
Supreme Court's recent decision in Apprendi v. New Jersey,
___ U.S. ___, 120 S.Ct. 2348 (2000). W e have jurisdiction
over this appeal under 28 U.S.C. S 1291. For the following
reasons, we affirm the District Court's sentence.

I.

On October 7, 1998, a grand jury for the District of New
Jersey issued a fourteen-count indictment, in which
Williams was charged with five counts of conspiracy to
distribute heroin, in violation of 21 U.S.C.S 841(a)(1), 21
U.S.C. S 846, and 18 U.S.C. S 2. An arr est warrant was
issued for Williams on October 8, 1998 at his last known
address, 36 Hawthorne Place, Apartment 2I, Montclair, New
Jersey (the "Hawthorne Place apartment"). Williams' son,
Charod Jermaine Williams, was at the apartment when the
FBI agents and local police officers arrived, and he
consented to a search of the apartment. The search of the
Hawthorne Place apartment revealed, inter alia, 293.4
grams of heroin and 311.2 grams of cocaine.

Williams entered into a plea agr eement with the
Government on Count Seven of the Indictment. The terms
of the plea agreement are set forth in the Government's
letter of January 29, 1999. The plea agreement states that
"[t]he sentencing judge may impose the maximum term of
imprisonment and the maximum fine that are consistent
with the Sentencing Reform Act and the Sentencing
Guidelines, up to and including the statutory maximum
term of imprisonment and the statutory maximumfine."
The plea agreement further specifies that"[t]he violation of
21 U.S.C. S 841(a)(1) charged in Count Seven of the
Indictment . . . carries a statutory maximum penalty of 20
years' imprisonment and a $1,000,000 fine."

                               2
The plea agreement also asserts that, "[i]f David Williams
enters a guilty plea and is sentenced on this char ge, the
United States Attorney for the District of New Jersey will
not initiate any further charges against David Williams
relating to the specific criminal conduct to which David
Williams has agreed to plead guilty pursuant to this letter,
nor will the United States Attorney for the District of New
Jersey initiate any charges against David W illiams relating
to the 8 October 1998 seizure of contraband fr om 36
Hawthorne Place, Apartment 2I, Montclair , New Jersey."

In connection with the plea agreement, W illiams and the
Government stipulated that the amount of her oin involved
in his violation of 21 U.S.C. S 841(a)(1) was approximately
67.2 grams, making the base offense level for his violation
22. In addition, the parties stipulated to a downwar d
departure of 3 points for acceptance of personal
responsibility, for a total offense level of 19.

On March 3, 1999, a plea hearing was held befor e the
District Court. At the plea hearing, Williams answered in
the affirmative when asked by the District Court, "Do you
understand that you could receive up to 20 years in prison
and a fine of $1 million or both?" and when asked whether
he understood that "this Court has the authority to impose
sentence more severe than the statutory maximum or less
severe than that provided by the guidelines." (Da-27-28.) At
the hearing, Williams' plea of guilty to Count Seven of the
Indictment was accepted.

Also on March 3, 1999, Williams filled out an Application
for Permission to Enter a Plea of Guilty, which stated, "[m]y
lawyer has informed me, and I understand, that the
maximum punishment which the law provides for the
offense(s) charged in this Complaint/Indictment/
Information is: A MAXIMUM OF 20 years imprisonment and
a fine of $1,000,000 for the offense(s) char ged in Count(s)
7." (Govt. Ap. 18.)

The Presentence Report ("PSR"), pr epared on April 5,
1999 and revised on May 4, 1999, recommended that 361
grams of heroin and 311.2 grams of cocaine be applicable
to Williams for sentencing purposes. The drug quantity was
apparently based on sales of heroin in which Williams was

                                3
involved totaling 67.2 grams, plus the 293.4 grams of
heroin and 311.2 grams of cocaine found in the Hawthorne
Place apartment. The PSR calculated Williams' base offense
level at 28, converting the amounts of heroin and cocaine
into the equivalent total amount of marijuana and applying
the Drug Quantity Table in U.S.S.G. S 2D1.1(c). The PSR
then subtracted 3 points for acceptance of r esponsibility,
leaving Williams' total offense level at 25. The PSR assigned
Williams a total of 6 criminal history points, placing him in
Criminal History Category III.

The PSR specified that "[t]he maximum ter m of
imprisonment is 20 years. 21 U.S.C. S 841(b)(1)(C)." The
PSR stated that the guideline range for a total of fense level
of 25 and a criminal history category of III was 70 to 87
months.

A sentencing hearing was held on May 24, 1999. At the
hearing, the issue was raised of whether the drugs seized
from the Hawthorne Place apartment should be included in
the calculation of Williams' offense level. The District Court
found: "It is clear from the submission of Probation and the
FBI reports, and of course the Defendant doesn't contest
that that's what the FBI would testify if they wer e called,1
that the larger amount, the amount in the apartment,
should be attributed to the Defendant. Therefor e, I will
adopt the presentence report." (Da-50.) The District Court
adopted the PSR's assignment to Williams of a total offense
level of 25 and criminal history category III, for which the
sentencing range is 70 to 87 months, and observed that
criminal history category III "clearly understates his true
criminal history." (Da-52.) The District Court then
sentenced Williams to 85 months incar ceration. (Govt. Ap.
25.)

The District Court entered final judgment in this matter
on June 2, 1999, and Williams filed a timely Notice of
Appeal on June 3, 1999.
_________________________________________________________________

1. Defense counsel indicated at the hearing that Williams did not doubt
the FBI agents' testimony, but challenged the veracity of what Charod
Williams had told the agents. (Da-44.)

                               4
II.

On appeal, we must determine whether the Supr eme
Court's decision in Apprendi v. New Jersey has an effect on
the District Court's sentencing of Williams, to the extent
that his sentence was altered by the District Court's finding
that the drugs found in the Hawthorne Place apartment
should be attributed to Williams for sentencing purposes.

There are two issues that we must look at in deciding
whether to apply Apprendi to this case: 1) whether the
Supreme Court intended Apprendi to apply to cases in
which the trial judge decides a fact that incr eases a
defendant's sentence under the Sentencing Guidelines, but
the sentence imposed does not exceed the statutory
maximum;2 and 2) whether the Supr eme Court intended
Apprendi to apply to cases in which judicial fact finding
increases the possible sentence to be r eceived above the
statutory maximum, but the actual sentence is below the
statutory maximum. We exercise plenary r eview over the
District Court's application of the Sentencing Guidelines
and the possible constitutional implication of W illiams'
sentence under Apprendi. See Bose Corp. v. Consumers
Union, 466 U.S. 485, 510 (1984); United States v. Thomas,
221 F.3d 430, 433-34 (3d Cir. 2000).

In Apprendi, the defendant had pleaded guilty, pursuant
to a plea agreement, to two counts of second-degree
possession of a firearm for an unlawful purpose and one
count of third-degree unlawful possession of an
antipersonnel bomb. Under New Jersey law, the second
degree offenses carried a penalty range of 5 to 10 years and
the third-degree offense carried a penalty of 3 to 5 years.

Under the plea agreement, the State reserved the right to
request an enhanced sentence of 10 to 20 years for one of
the second-degree counts on the ground that the offense
was committed with a biased purpose, because that of fense
was based on an incident in which the defendant hadfired
_________________________________________________________________

2. Williams raises the issue on appeal as to whether Apprendi "precludes
enhancement of a guidelines sentence by consideration of an additional
amount of narcotics not charged in the indictment on a standard of
proof less than beyond a reasonable doubt." (Appellant's Brief, at 5.)

                               5
several shots into the home of an African-American family
that had recently moved to a previously all-white
neighborhood. The defendant reserved the right in the plea
agreement to challenge any such hate crime sentence
enhancement as violating the United States Constitution.

The New Jersey trial court found that the hate crime
enhancement did apply and sentenced the defendant to 12
years on that count, two years more than the maximum
sentence for second-degree offenses without the
enhancement, and the trial court sentenced the defendant
to two shorter sentences on the other two counts to run
concurrently with the 12-year sentence. The Supreme
Court vacated as unconstitutional the sentence imposed by
the trial court, which had been affirmed by the New Jersey
Superior Court, Appellate Division and by the New Jersey
Supreme Court. The Court held that, "[o]ther than the fact
of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a r easonable
doubt." 120 S.Ct. at 2362-63.

In this case, Williams was charged under 21 U.S.C.
S 841(a)(1), which does not specify the applicable penalties.
However, S 841(b)(1) sets forth penalties dependent on the
amount of drugs involved. Section 841(b)(1)(A) pr ovides for
imprisonment of 10 years to life if "1 kilogram or more of a
mixture or substance containing a detectable amount of
heroin" is involved. Under S 841(b)(1)(B), a person may be
sentenced to 5 to 40 years imprisonment for a violation
involving "100 grams or more of a mixtur e or substance
containing a detectable amount of heroin." Finally,
S 841(b)(1)(C) states that, "[i]n the case of a controlled
substance in schedule I [which includes her oin] . . ., except
as provided in subparagraphs (A), (B), or (D), such person
shall be sentenced to a term of imprisonment of not more
than 20 years."

Under the plea agreement, Williams stipulated to 67.2
grams of heroin being involved in Count Seven and/or his
relevant conduct alleged in Counts Five, Eight, and Nine of
the Indictment, for which the applicable statutory
maximum sentence is 20 years, under 21 U.S.C.

                               6
S 841(b)(1)(C).3 The base offense level for between 60 and 80
grams of heroin under the Sentencing Guidelines is 22, and
the plea agreement recommended a 3-point r eduction in
offense level for acceptance of responsibility. Williams was
placed in criminal history category III by the PSR and by
the District Court. With a total offense level of 19 and
criminal history category III, his sentence range under the
Sentencing Guidelines was 37 to 46 months.

At the sentencing hearing, the District Court found that
the amount of drugs involved in Williams' of fense was 361
grams of heroin and 311.2 grams of cocaine, on the
recommendation in the PSR that the drugs found at
Hawthorne Place apartment should be attributed to
Williams. This increased Williams' base offense level to 28.
At a total offense level of 25 (28 minus 3 points for
acceptance of responsibility) and a criminal history category
of III, the sentencing range for Williams was 70 to 87
months. The District Court sentenced Williams to 85
months.

A.

Initially, we hold that Apprendi does not apply to the
increase in Williams' sentence under the Sentencing
Guidelines. Apprendi did not dir ectly address this issue,
because it concerned a sentence under state law. With
regard to the Sentencing Guidelines, the Court stated: "The
Guidelines are, of course, not before the Court. We
therefore express no view on the subject beyond what this
Court has already held." 120 S.Ct. at 2366 n.21 (citing
Edwards v. United States, 523 U.S. 511 (1998)).

In Edwards v. United States, the Supr eme Court heard a
claim by several defendants that a district judge's
sentences of them for violation of 21 U.S.C. SS 841 and 846
involving cocaine and crack distribution wer e unlawful,
insofar as they were based on crack, because the jury was
_________________________________________________________________

3. That this statutory maximum was applied to W illiams is confirmed in
the plea agreement, by the District Court at the plea hearing, in
Williams' Application for Permission to Enter a Plea of Guilty, and in the
PSR.

                               7
not presented with the issue of whether their conduct
involved cocaine or crack and the Sentencing Guidelines
imposed higher penalties for distribution of crack than for
distribution of cocaine. 523 U.S. at 513. The Court upheld
the District Court's sentences, stating "[t]he Sentencing
Guidelines instruct the judge in a case like this one to
determine both the amount and the kind of`controlled
substances' for which a defendant should be held
accountable--and then to impose a sentence that varies
depending upon amount and kind." Edwar ds, 523 U.S. at
513-14 (emphasis in text). The Court noted that the
outcome of the case may have been differ ent if the District
Court's sentence had exceeded the maximum per mitted by
statute. The Court explained:

       Of course, petitioners' statutory and constitutional
       claims would make a difference if it wer e possible to
       argue, say, that the sentences imposed exceeded the
       maximum that the statutes permit for a cocaine-only
       conspiracy. That is because a maximum sentence set
       by statute trumps a higher sentence set forth in the
       Guidelines. USSG S 5G1.1. But, as the Gover nment
       points out, the sentences imposed here wer e within the
       statutory limits applicable to a cocaine-only
       conspiracy, given the quantities of that drug attributed
       to each petitioner.

Edwards, 523 U.S. at 515.

The Court also stated in Apprendi that "nothing in this
history [of requiring a jury determination of guilt for every
element of the crime charged] suggests that it is
impermissible for judges to exercise discretion--taking into
consideration various factors relating both to offense and
offender--in imposing judgment within the range prescribed
by statute." 120 S.Ct. at 2358. Though the application of
the Sentencing Guidelines by judges is not entir ely
discretionary, see United States v. Mistr etta, 488 U.S. 461,
491 (1989) (stating that "the Guidelines bind judges and
courts in the exercise of their uncontested r esponsibility to
pass sentence in criminal cases"), the Sentencing
Guidelines are in effect a codification of judges' exercise of
discretion in sentencing precisely in the manner described
by the Court. As Chief Judge Becker stated in his

                               8
concurrence in United States v. Mack,"the Sentencing
Guidelines are . . . a constitutional mechanism for
channeling the discretion that a sentencing court would
otherwise enjoy." 2000 WL 1456245, at 14 (3d Cir . Sept.
29, 2000) (Becker, J., concurring).

As in Edwards, the District Court'sfinding in this case
increased Williams' sentence under the Sentencing
Guidelines, but the sentence did not exceed the statutory
maximum. Accordingly, we hold that the District Court's
finding was a permissible exercise of discretion, to the
extent that the finding altered Williams' sentence under the
Sentencing Guidelines. This holding is bolster ed further by
our observation in United States v. Ceper o that, "[b]ecause
application of the Sentencing Guidelines in this case does
not implicate a fact that would increase the penalty of a
crime beyond the statutory maximum, the teachings of
Apprendi v. New Jersey, ___ U.S. ___, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), are not relevant her e." 224 F.3d 256,
267 n.5 (3d Cir. 2000).

B.

We must now turn to the issue of whether the fact that
the District Court's finding increased the possible statutory
maximum under 21 U.S.C. S 841(b)(1) implicates Apprendi.
In Apprendi, the Court was ambiguous as to whether its
holding should apply in such a situation. The Court in
Apprendi characterized the constitutional rule as: " `[I]t is
unconstitutional for a legislature to r emove from the jury
the assessment of facts that increase the prescribed range
of penalties to which a criminal defendant is exposed. It is
equally clear that such facts must be established by proof
beyond a reasonable doubt.' " Appr endi, 120 S.Ct. at 2363
(quoting Jones, 526 U.S. at 252-53 (opinion of Stevens, J.))
(emphasis added). The Court also stated that " `any fact
(other than prior conviction) that increases the maximum
penalty for a crime must be charged in an indictment,
submitted to a jury, and proven beyond a r easonable
doubt.' " 120 S.Ct. at 2355 (quoting Jones , 526 U.S. at 243
n.6) (emphasis added). By those formulations, it could be
argued that the Apprendi rule does apply to Williams,
because the District Court's finding increased the

                               9
"prescribed range of penalties" and the"maximum penalty"
to which Williams was exposed, even though his actual
penalty did not exceed 20 years.

However, as discussed earlier, the Court stated in
Apprendi: "We should be clear that nothing in this history
suggests that it is impermissible for judges to exercise
discretion--taking into consideration various factors
relating both to offense and offender--in imposing a
judgment within the range prescribed by statute." 120 S.Ct.
at 2358. This statement suggests that a District Court's
sentence that is under the statutory maximum cannot be
constitutionally objectionable under Appr endi.4

Despite the ambiguity in Apprendi, we hold that it does
not apply to Williams' sentence for several r easons. First
and foremost, though the District Court's finding regarding
the amount of drugs substantially increased the possible
statutory maximum sentence under 21 U.S.C. S 841(b)(1),
we hold that Apprendi is not applicable to Williams'
sentence, because the sentence actually imposed (seven
years and one month) was well under the original statutory
maximum of 20 years.

Second, this 20-year maximum sentence was confir med
several times in the course of Williams' plea and sentence.
The plea agreement specified that the "statutory maximum
penalty" for Williams' violation was 20 years imprisonment.
The District Court confirmed at the plea hearing that
_________________________________________________________________

4. In this Circuit, we have addressed Apprendi only tangentially, in
Cepero, discussed above, and in Judge Becker's concurrence in United
States v. Mack, 2000 WL 1456245 (3d Cir. Sept. 29, 2000). Judge Becker
set forth a two-step "Apprendi inquiry" in Mack:

       A court must first determine the "pr escribed statutory maximum"
       sentence for the crime of which the defendant was convicted and
       assess whether the defendant's ultimate sentence exceeded it. If it
       did, the court must consider the second-order Apprendi question:
       whether the enhanced sentence was based on "the fact of a prior
       conviction." If it was, then the sentence is constitutional. If it
was
       not, then the sentence is unconstitutional.

2000 WL 1456245, at 9. Under the Apprendi test as formulated by Judge
Becker, therefore, Williams' challenge would fail because he could not get
beyond step one.

                               10
Williams understood that he "could r eceive up to 20 years
in prison." Williams' application to enter a guilty plea stated
that he understood that the maximum punishment under
law for his offense was 20 years in prison. Finally, the PSR
stated that 20 years was the maximum sentence under 21
U.S.C. S 841(b)(1)(C).

Third, based on the amount of drugs that the District
Court found attributable to Williams, it would not be
possible for the District Court to sentence W illiams to a
sentence exceeding 20 years under the Sentencing
Guidelines. Even with an offense level of 28 (Williams'
offense level with the drugs found by the District Court and
without the 3-point downward adjustment) and criminal
history category VI (the highest), the maximum sentence for
Williams' offense under the Guidelines would be 175
months, or 14 years and 7 months. Therefor e, the District
Court's finding did not actually "expose" W illiams to a
sentence above 20 years, as long as the District Court
sentenced Williams within the range pr ovided in the
Sentencing Guidelines.

Fourth, the District Court's finding that the drugs in the
Hawthorne Place apartment were attributable to Williams
for sentencing purposes could be characterized as afinding
of "relevant conduct" under the Sentencing Guidelines.
Under U.S.S.G. S 1B1.3(a)(2), acts "that were part of the
same course of conduct or common scheme or plan as the
offense of conviction" may be consider ed as "relevant
conduct" in calculating a defendant's base of fense level. As
the Supreme Court stated in Edwards , "whether the judge
believed that [the presence of the drugs in the Hawthorne
Place apartment] was part of the `offense of conviction,' or
the judge believed that it was [relevant conduct, t]he
Guidelines sentencing range . . . is identical." 523 U.S. at
514-15. Therefore, if the District Court found that the
drugs in the Hawthorne Place apartment wer e attributable
to Williams as relevant conduct, thefinding would affect
the sentencing range under the Sentencing Guidelines but
would not affect the range under the statute.

Finally, at the sentencing hearing, the District Court
expressed dissatisfaction with the low criminal history
category assigned to Williams and indicated that the court

                                11
had discretion to depart upwards under U.S.S.G. S 4A1.3.5
Indeed, the PSR lists ten convictions between 1958 and
1970 for which no criminal history points wer e assigned. In
addition, several of Williams' prior convictions resulted in
substantial sentences of incarceration, including a sentence
of 12 years in prison in 1986 for possession with intent to
distribute heroin (and tax evasion).

In reviewing Williams' criminal history and considering
an upward departure, the District Court stated:

       I do not feel that it is necessary to consider the
       [upward] departure, although ther e are very, very good
       grounds for that because his criminal history category
       does not adequately predict his true criminal history of
       likelihood of repeat offense.

        So, if we didn't have that range [of 70 to 87 months],
       I would have to consider [an upward departur e]. . . .

        So we have a lengthy criminal history her e for a
       number of very serious offenses. As I say, he would be
       a career offender by departure because there certainly
       is a very strong likelihood of repeat of fense and the
       criminal history category of three clearly understates
       his true criminal history but I decline to r each that at
       this time because, looking at the offense level of 25 and
       criminal history category of three, I find that the 70 to
       87 month range is sufficient to protect the public at
       this time. If I were wrong as to the of fense level, or
       criminal history category, and it were lesser , I would
       certainly consider the upward departure for adequacy
       of criminal history.

(Da-50, Da-52.)

In stating that an upward departure might be appropriate
but that the range of 70 to 87 months was sufficient, the
District Court suggested that Williams' criminal history
_________________________________________________________________

5. Section 4A1.3 allows the District Court to consider departing from the
applicable Guideline range "[i]f reliable information indicates that the
criminal history category does not adequately r eflect the seriousness of
the defendant's past criminal conduct or the likelihood that the
defendant will commit other crimes."

                               12
contributed to the sentence of 85 months. The fact that an
upward departure from a lower sentence range would likely
be within the District Court's discretion based on Williams'
lengthy criminal history lends further support to our
decision not to vacate the sentence on Appr endi grounds.

III.

For the foregoing reasons, we affir m the District Court's
sentence.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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