     Case: 11-20095     Document: 00511767340         Page: 1     Date Filed: 02/24/2012




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

                                                                            FILED
                                                                         February 24, 2012
                                     No. 11-20095
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TYRONE MAPLETOFT WILLIAMS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 4:03-CR-221-11


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        In May 2003, Tyrone Mapletoft Williams, a commercial truck driver,
transported 74 unlawful aliens from Harlingen, Texas, to Victoria, Texas.
During the trip, he left the aliens locked in the trailer of his tractor-trailer
without activating the trailer’s refrigeration unit; as a result, 19 aliens died of
dehydration, hyperthermia, suffocation, and mechanical asphyxia.
        Williams was convicted by a jury of 39 separate counts arising out of that
trip. The district court imposed the jury’s life sentences on counts 40 to 58 of the

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                    No. 11-20095

superseding indictment. The court further imposed a 405-month sentence on
count 1 and 240-month sentences on counts 21 to 39, all to run concurrently with
each other and the life sentence.
      This court affirmed the convictions, the 405-month sentence on count 1,
and the 240-month sentences on counts 21 to 39. United States v. Williams, 610
F.3d 271, 294 (5th Cir. 2010). This court vacated the life sentences imposed by
the jury on counts 40 to 58 and remanded the case for resentencing by the
district court on those counts. Id. On remand, the district court imposed 405-
month sentences on counts 40 to 58. Williams appeals those sentences.
      Williams argues that the district court abused its discretion when it denied
attorney Craig Washington’s motion to withdraw as counsel on appeal. He
contends that the district court’s decision violated his rights under the Sixth
Amendment and Washington’s rights under the Fifth and Thirteenth
Amendments. During Williams’s prior appeal, we granted Washington’s motion
to withdraw and appointed another attorney in his place. After we remanded
the case to the district court for resentencing, Washington reentered the case as
retained counsel. After the resentencing, Washington moved to withdraw as
counsel on appeal. The district court denied Washington’s motion because
neither   Williams nor     Washington        ever    indicated that Washington’s
representation of Williams excluded any appeal from Williams’s resentencing
and because the appointment of yet another attorney would have interfered with
“the prompt and efficient administration of justice.” See McQueen v. Blackburn,
755 F.2d 1174, 1178 (5th Cir. 1985) (internal quotation marks and citation
omitted). Williams has not shown that the district court abused its discretion
when it denied Washington’s motion to withdraw as counsel on appeal. See
United States v. Wild, 92 F.3d 304, 307 (5th Cir. 1996).
      Williams next argues that the district judge abused her discretion when
she denied his motion for recusal under 28 U.S.C. § 455(a). On appeal, Williams
complains only that the judge’s rulings on Washington’s motion to reenter the

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                                 No. 11-20095

case as retained counsel, Washington’s motion for judicial notice, and
Washington’s motion to withdraw as well as the judge’s imposition of 405-month
sentences established her bias.     The judge concluded that the affidavits
submitted by Williams in support of his recusal motion were legally insufficient
because they contained only hearsay and because they failed to establish bias
against Williams. See Henderson v. Dep’t of Pub. Safety & Corr., 901 F.2d 1288,
1296 (5th Cir. 1990). Furthermore, § 455(a) requires a showing of personal,
rather than judicial, bias; thus, Williams’s arguments regarding the judge’s
rulings are not sufficient to satisfy § 455(a). See Liteky v. United States, 510
U.S. 540, 555-56 (1994). Accordingly, Williams has not shown that the district
court abused its discretion in denying his motion for recusal. See United States
v. Anderson, 160 F.3d 231, 233 (5th Cir. 1998).
      Williams next argues that the district court abused its discretion when it
denied his motion to take judicial notice of adjudicative facts pursuant to Rule
201 of the Federal Rules of Evidence. Specifically, he contends that the district
court should have taken notice of his codefendants’ sentencing information to
avoid unwarranted sentence disparities. The record reflects that the district
court, on its own motion, took judicial notice of the very documents cited by
Williams in his motion. See FED. R. EVID. 201(c) (indicating that the district
court may take judicial notice on its own motion). Thus, because Williams’s
motion was unnecessary, the district court did not abuse its discretion in
denying it. See Funk v. Stryker Corp.; 631 F.3d 777, 783 (5th Cir. 2011).
      Finally, Williams alleges a number of errors in connection with his 405-
month sentences, which were the result of a 10-level upward departure imposed
by the court pursuant to 18 U.S.C. § 3553(a), U.S.S.G. § 5K2.1, and U.S.S.G.
§ 5K2.8. Following United States v. Booker, 543 U.S. 220 (2005), this court
reviews sentences, whether inside or outside the guidelines range, for
reasonableness in light of the sentencing factors in 18 U.S.C. § 3553(a). Gall v.
United States, 552 U.S. 38, 51 (2007). Under Gall, this court first examines

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whether the district court committed any procedural errors. Id. In making that
determination, this court reviews the district court’s interpretation and
application of the Sentencing Guidelines de novo and its findings of fact for clear
error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). If
there is no procedural error, this court reviews “the substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard.” Gall, 552 U.S.
at 51.
         Williams asserts that the upward departure should have been limited to
five levels. He does not explain how or why the upward departure should have
been limited to five levels. He also fails to cite any portion of the record. See
FED. R. APP. P. 28(a)(9)(A). Accordingly, Williams has abandoned the foregoing
argument by failing to adequately brief it. See United States v. Scroggins, 599
F.3d 433, 446 (5th Cir. 2010).
         Williams argues that the district court erred in departing upward because
the jury found in his favor with respect to certain mitigating factors. Williams’s
argument concerns jury interrogatories regarding count 1 of the superseding
indictment and that have no bearing on his sentences on counts 40 to 58.
         Williams also argues that counts 40 to 58 should have been grouped for
sentencing purposes pursuant to U.S.S.G. § 3D1.2(c). Because counts 40 to 58
each involved a different victim, namely the 19 aliens who died as a result of
Williams’s actions, the district court did not err in refusing to group counts 40
to 58 under § 3D1.2. See United States v. Clark, 178 F.3d 290, 292-95 (5th Cir.
1999).
         Williams also argues that the district court committed procedural error
when it failed to consider the unwarranted disparity between his sentence and
the sentences of certain of his codefendants.         See Gall, 552 U.S. at 51;
§ 3553(a)(6). Williams’s argument is directly contradicted by the resentencing
transcript, which reflects that the district court considered Williams’s disparity
arguments and consulted various documents regarding the sentences imposed

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                                  No. 11-20095

on Williams’s codefendants. In light of the foregoing, Williams has not shown
that the district court committed procedural error by failing to consider the issue
of unwarranted sentence disparities. See Gall, 552 U.S. at 51.
      Finally, Williams argues that because the district court failed to consider
the disparity issue, his sentence was substantively unreasonable. The record
reflects that the district court imposed the 10-level upward departure pursuant
to § 5K2.1 and § 5K2.8 because the number of deaths, the number of people
exposed to the risk of death, and the nature of Williams’s conduct took the case
out of the heartland. Furthermore, because Williams was the only coconspirator
who could have opened the trailer or turned on the refrigeration unit, Williams
was directly responsible for the deaths of the 19 aliens. Accordingly, the district
court’s reasons for the departure advance the objectives set forth in § 3553(a),
are authorized by § 3553(b), and are justified by the facts of the case. See United
States v. Saldana, 427 F.3d 298, 310 (5th Cir. 2005). Thus, the district court did
not abuse its discretion in deciding to impose an upward departure. See United
States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). For the same
reasons, the district court did not abuse its discretion with respect to the degree
of departure. See id. “There is no abuse of discretion if the judge provides
acceptable reasons for departure and the degree of departure is reasonable.”
United States v. Delgado-Nunez, 295 F.3d 494, 497 (5th Cir.2002) (internal
citation omitted).
      Accordingly, because each of Williams’s assignments of error is without
merit, the district court’s imposition of 405-months sentences on counts 40 to 58
of the superseding indictment is AFFIRMED.




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