                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-13-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4649




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                    No. 05-4649
                                   ____________

                          UNITED STATES OF AMERICA

                                          v.

                          WAYNE STEPHEN WILLIAMS,

                                         Appellant
                                   ____________

                   On Appeal from the United States District Court
                             for the District of Delaware
                               (D.C. No. 05-cr-00017)
                       District Judge: Honorable Kent Jordan
                                    ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                September 13, 2006

              Before: FUENTES, FISHER and McKAY,* Circuit Judges.

                              (Filed October 13, 2006)
                                   ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable Monroe G. McKay, United States Circuit Judge for the Tenth
Circuit, sitting by designation.
FISHER, Circuit Judge.

       Wayne Stephen Williams appeals his sentence for possession with intent to

distribute crack in violation of 21 U.S.C. § 841. Williams argues that the District Court

did not adequately consider the sentencing factors set forth in 18 U.S.C. § 3553(a), and

that it was unreasonable for the District Court to sentence him to the range prescribed by

the Sentencing Guidelines using the Guidelines’ formula for crack cocaine. We will

vacate the sentence and remand for re-sentencing in light of our decision in United States

v. Gunter, No. 05-2952, 2006 WL 2589149 (3d Cir. Sept. 11, 2006).

                                              I.

       Under United States v. Booker, 543 U.S. 220 (2005), as the third step in

determining criminal sentences, district courts must consider the factors set forth in 18

U.S.C. § 3553(a).1 “The record must demonstrate the trial court gave meaningful

consideration to the § 3553(a) factors.” United States v. Cooper, 437 F.3d 324, 329 (3d


       1
        “[O]ur post-Booker precedent instructs district courts to follow a
       three-step sentencing process.
       (1) Courts must continue to calculate a defendant’s Guidelines sentence
       precisely as they would have before Booker.
       (2) In doing so, they must formally rul[e] on the motions of both parties and
       stat[e] on the record whether they are granting a departure and how that
       departure affects the Guidelines calculation, and tak[e] into account [our]
       Circuit’s pre-Booker case law, which continues to have advisory force.
       (3) Finally, they are required to exercise [ ] [their] discretion by considering
       the relevant [§ 3553(a)] factors in setting the sentence they impose . . . .”

United States v. Gunter, No. 05-2952, 2006 WL 2589149, *9 (3d Cir. Sept. 11, 2006)
(internal citations and quotation marks omitted).

                                              2
Cir. 2006). We do not require any specific form of invocation or recitation; we ask only

whether the record reflects the district court’s awareness of the statutory factors and its

obligation to take them into account. In Cooper, we explained the standard as follows:

       The court need not discuss every argument made by a litigant if an
       argument is clearly without merit. Nor must a court discuss and make
       findings as to each of the § 3553(a) factors if the record makes clear the
       court took the factors into account in sentencing. Nor will we require
       district judges to routinely state by rote that they have read the Booker
       decision or that they know the sentencing guidelines are now advisory. On
       the other hand, a rote statement of the § 3553(a) factors should not suffice if
       at sentencing either the defendant or the prosecution properly raises a
       ground of recognized legal merit (provided it has a factual basis) and the
       court fails to address it.

Cooper, 437 F.3d at 329 (internal citations omitted).

       In order to consider the factors, a district court must first correctly apprehend the

breadth of allowable arguments under each factor. In Gunter, we held that it is reversible

error for a district court to rule that it lacks discretion under § 3553(a) to consider

arguments concerning the inequity of the 100:1 crack-to-powder cocaine sentencing

differential. In that case, the defendant appealed to the criticisms and recommendations

of change made by the Sentencing Commission in its 2002 report to Congress regarding

the guidelines provisions governing crack cocaine.2 The district court stated that it was


       2
        See U.S. Sentencing Comm’n, Report to Congress: Cocaine and Federal
Sentencing Policy ch. 8 (2002), available at http://www.ussc.gov/r_congress/02crack/
2002crackrpt.pdf (exhaustively cataloging empirical evidence gathered since 1986 and
concluding that the factual assumptions underlying the heightened crack punishments are
uniformly erroneous); id. at 91 (“After carefully considering all of the information
currently available . . . the Commission firmly and unanimously believes that the current

                                               3
aware of the controversy surrounding the crack guidelines, and of the evidence amassed

and arguments made by the Sentencing Commission, but that consideration of such

evidence and arguments was not a proper judicial function – in short, that the court lacked

authority to consider, in its evaluation of the § 3553(a) factors, the possible disparity of

the guidelines for crack cocaine sentences.

       We reversed, holding that district courts do have the authority to consider such

arguments, and that sentences imposed absent recognition of that authority are invalid

under Booker: “Post-Booker a sentencing court errs when it believes that it has no

discretion to consider the crack-to-powder disparity incorporated in the Guidelines – but

not demanded by 21 U.S.C. § 841(b) – as simply advisory at step three of the post-Booker

sentencing process (imposing the actual sentence after considering the relevant § 3553(a)

factors).” Gunter, 2006 WL 2589149, *11.3 While reiterating that a District Court may

not “categorically reject the 100:1 ratio and substitute its own,” id., Gunter holds that

once a district court has properly calculated a defendant’s sentence under the guidelines

(using the 100:1 ratio adopted by Congress), it may consider the possible inequity of that

100:1 ratio in the third step of sentencing.

       In Gunter, the district court rejected the defendant’s challenge to the 100:1 ratio as

follows:


federal cocaine sentencing policy is unjustified and fails to meet the sentencing objectives
set forth by Congress . . . .”).
       3
           In Gunter, as here, 21 U.S.C. § 841(b) defines the substantive criminal offense.

                                                4
       Doesn't a sentencing court have to respect the congressional intent with
       respect to sentencing for crack versus powder cocaine, and to take a
       position that does not recognize what Congress clearly intended, wouldn't
       that be a legislative act by a Court as opposed to a judicial act? I don't think
       the provisions that Congress has put up there for a Court to decide to
       consider suggest that the court can second guess Congress' well-spelled out
       intent with respect to sentencing. I don't think I can call it sentencing -- I
       don't think I can say that there should not be a sentencing disparity.

Gunter, 2006 WL 2589149, *2.

       In this case, the District Court rejected the defendant’s challenge to the 100:1 ratio

as follows:

       [A]s you know, this is not the first time we've talked in this courtroom
       about the difference in treatment under the guidelines of powder cocaine
       and crack cocaine. So since you made the argument again, I'll just briefly
       restate that as important as this issue is, it's an issue to be addressed by the
       Sentencing Commission which is specifically set up to look at these kinds
       of things and the Congress of the United States. And they're aware of it and
       I don't think it's the province of the Court to say, well, I'm going to depart
       from the guidelines because as a matter of public policy, I disagree with
       those folks.

       In this case, just as in Gunter, the District Court asserted that considering the

merits of the 100:1 guidelines ratio was a policy consideration that lay outside the

province of the judiciary. Under Gunter that assertion is reversible error. The District

Court did not give proper consideration to the full range of evidence and arguments

within its sentencing authority when considering the § 3553(a) factors at step three.

Gunter therefore requires that we vacate Williams’ sentence and remand this case so that

the District Court can re-sentence Williams with a correct and complete understanding of

the scope of its discretion under Booker.

                                              5
      Accordingly, the judgment of sentence will be vacated and the case remanded for

re-sentencing.




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