                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-13-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4642




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Recommended Citation
"USA v. Williams" (2005). 2005 Decisions. Paper 423.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/423


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                                                                NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT


                                      No. 03-4642


                            UNITED STATES OF AMERICA

                                           v.

                                CAZZIE L. WILLIAMS,

                                       Appellant




  ON APPEAL FROM FINAL JUDGMENT OF THE UNITED STATES DISTRICT
              COURT FOR THE DISTRICT OF NEW JERSEY
                     (D.C. No. 02-cr-00842-001)

                District Judge: The Honorable Joseph A. Greenaway, Jr.


                            Submitted pursuant to LAR 34.1(a)
                                on September 27, 2005.

                             Before: RENDELL, FUENTES,
                               and GARTH, Circuit Judges

                                (Filed: October 13, 2005)
                                 ____________________

                               OPINION OF THE COURT
                                _____________________

Fuentes, Circuit Judge.

      Counsel for Cazzie L. Williams has filed a motion to withdraw as appellate
counsel in this case and has submitted a brief in support thereof pursuant to Anders v.

California, 386 U.S. 738 (1967). Counsel argues that there are no non-frivilous issues

that can be raised on appeal by Williams. Williams was provided with a copy of the

motion and the brief and was given notice that he could file a pro se brief. He elected to

do so and filed an informal brief with the Court on April 1, 2005.

       On April 14, 2003, Williams pleaded guilty to a four-count indictment that charged

him with committing four bank robberies in New Jersey. Williams consented to

prosecution in New Jersey and then pleaded guilty to a one-count indictment from the

Northern District of Ohio, which charged him with committing one bank robbery, and to

a two-count indictment from the Middle District of Pennsylvania, which charged him

with committing two bank robberies. At his April 14, 2003 appearance, Williams

admitted that he robbed a total of 27 banks in New Jersey, Pennsylvania, Ohio, Maryland,

and Virginia from September 1998 through September 2002.

       The District Court agreed with the Probation Department that Williams had a

criminal history category of I, and an applicable offense level of 28, resulting in a

guideline range of 78 to 97 months. In arriving at the offense level of 28, the Probation

Department found that the greater adjusted offense level was 26. The Probation

Department then determined that, pursuant to Guidelines Section 3D1.4, there were a

total of 27 grouping units for the 27 robberies. Because 3D1.4 allows for a maximum of

five grouping units, the offense level was adjusted to 28. The Probation Department,



                                              2
however, noted that a background note to Sentencing Guideline Section 3D1.4 states that

departure from the 3D1.4 is warranted in the unusual case where the additional offense

results in a total of significantly more than five units. Although Williams pleaded guilty

only to seven bank robberies, the District Court found that Williams had robbed 27 banks

based on his admission during the hearing. Based on this finding, the District Court

determined that upward departure beyond the five grouping units allowed in 3D1.4 was

appropriate. Accordingly, the District Court grouped the remaining 22 robberies into

three groups – a group of five, a group of seven, and a group of ten – and increased the

offense level by two for each of these groups, resulting in six-level upward departure.

This six-level upward departure changed Williams’ sentencing level from level 28, with a

sentencing range of 78 to 97 months, to level 34, with a sentencing range of 151 to 188

months. The District Court then imposed a sentence of 156 months.

       Williams argues that the District Court’s upward departure was in violation United

States v. Booker, 125 S.Ct. 738 (2005) and Blakely v. Washington, 542 U.S. 296 (2004)

because the upward departure was based on a finding of fact made by the District Court

judge using a preponderance of the evidence standard, rather than by a jury using a

reasonable doubt standard. Having determined that the sentencing issues Williams raises

are best determined by the District Court in the first instance, we will vacate the sentence

and remand for re-sentencing in accordance with Booker. See generally, United States v.

Davis, 407 F.3d 162 (3d Cir. 2005).



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       Accordingly, we will affirm Williams’ conviction, but we will vacate Williams’

sentence and remand for re-sentencing. Defense counsel’s motion to withdraw is hereby

denied so that counsel may appear at Williams’ re-sentencing as there is now a non-

frivolous issue presented on his appeal.
