                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-9-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2834




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 06-2834


                           UNITED STATES OF AMERICA

                                           v.

                                JOMO A. WILLIAMS,
                                               Appellant



                    On Appeal from the United States District Court
                              for the District of New Jersey
                          (D.C. Criminal No. 01-cr-00490-1)
                     District Judge: Honorable William G. Bassler


                      Submitted Under Third Circuit LAR 34.1(a)
                                on November 29, 2007

     Before: BARRY, FUENTES, Circuit Judges, and DIAMOND,1 District Judge

                                (Filed: January 9, 2008)



                              OPINION OF THE COURT




      1
         The Honorable Paul S. Diamond, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
FUENTES, Circuit Judge.

         Appellant Jomo Williams ("Williams") appeals the order entered by the District

Court following our remand of this case for resentencing in light of the Supreme Court’s

decision in United States v. Booker, 543 U.S. 220 (2005). Williams’ sole challenge is to

his sentence. This Court has jurisdiction over Williams’ appeal pursuant to 28 U.S.C. §

1291. For the reasons stated below, we will affirm the sentence imposed by the District

Court.

         During the course of a sting operation in July of 2001, an FBI agent and a Customs

agent approached Williams, who was seated in the driver’s seat of a car at the time.

Williams opened his door, placed the car in reverse, accelerated, and proceeded to hit the

Customs agent with the car door. He then put the car in drive, accelerated, and hit the

FBI agent, who was thrown onto the car’s hood. The FBI agent managed to shoot

Williams through the windshield, but Williams continued to resist arrest, crashing the car

into two parked vehicles and then refusing to get out of the car. He was eventually

subdued and arrested by the Customs agent with the help of two off-duty police officers

who were in the vicinity.

         Williams was indicted on two counts of mail fraud (related to the sting operation)

and two counts of knowingly, willingly and forcibly assaulting a federal agent using a

dangerous and deadly weapon, and inflicting bodily injury. In May of 2002, a jury found

Williams guilty on all four counts. Using a special verdict sheet, the jury concluded

beyond a reasonable doubt that Williams’ actions had inflicted bodily injury on both

                                              2
agents, but did not find that the United States had proven beyond a reasonable doubt that

Williams had used a dangerous weapon in committing these acts.

       The District Court originally sentenced Williams to 60 months on the mail fraud

counts. With respect to the assault counts, the District Court determined that a

preponderance of the evidence supported a finding that Williams had used a dangerous

weapon with the intent to cause bodily harm. As such, the District Court found that

USSG § 2A2.2 (Aggravated Assault) was the most applicable Guidelines provision, and

assigned Williams a base offense level of 15.2 The District Court further adjusted

Williams’ offense level upward four levels for use of a dangerous weapon, two levels for

inflicting bodily injury, three levels because the victims were law enforcement agents,

and two levels for the fraud counts. After these adjustments, the total offense level was

26, which corresponded to a Guidelines range of 78 to 97 months for the assault counts.

The District Court sentenced Williams to 78 months on the assault counts, to run

concurrently with the sentence on the fraud counts.

       On appeal to this Court, we affirmed Williams’ conviction, but remanded for

resentencing post-Booker. The District Court then incorporated by reference its previous

findings, considered the 18 U.S.C. § 3553(a) factors, and imposed the same sentence as it

had previously. This appeal followed.




       2
       The District Court utilized the November 1, 2001 edition of the Guidelines
Manual.

                                             3
       Williams claims that the District Court erred when it (1) failed to cap the potential

penalty on the assault counts at three years; and (2) applied a preponderance standard to

the question of whether Williams used a dangerous weapon with intent to cause bodily

harm, which resulted in the imposition of an incorrect base offense level.

       Williams’ argument that he should have been eligible for a three-year statutory

maximum on the assault counts is unpersuasive. Williams was charged with violating 18

U.S.C. § 111, which dictates that the maximum sentence for incidents of “simple assault”

is three years. See 18 U.S.C. § 111(a).3 However, 18 U.S.C. § 111(b) allows for an

enhanced penalty of up to ten years4 if the assault involves a “deadly or dangerous

weapon” or “inflicts bodily injury.” Here, the jury found beyond a reasonable doubt that

Williams’ actions had “inflicted bodily injury” on his victims; hence, the District Court

committed no Sixth Amendment violation (as the relevant fact was found by the jury),

and 18 U.S.C. § 111(b) allows Williams to be sentenced to a period of up to ten years.

       As for Williams’ second argument, it is clear that Appendix A of the Guidelines

lists § 2A2.2 and § 2A2.4 as the two offense guideline sections applicable to 18 U.S.C. §

111.5 Section 2A2.4 indicates that § 2A2.2 should be employed if an “aggravated


       3
         At the time of Williams’ conviction, the statutory maximum for “simple assault”
pursuant to 18 U.S.C. § 111(a) was three years; the provision was amended in 2002, and
the statutory maximum is now eight years.
       4
        18 U.S.C. § 111(b) was also amended in 2002; the statutory maximum under this
provision is now 20 years.
       5
        For this reason, contrary to what Williams suggests, § 2A2.3 is not an offense
guideline section that can be applied in this case.

                                             4
assault” took place, and Application Note 1 to § 2A2.2 defines “aggravated assault” as

follows: “a felonious assault that involved (A) a dangerous weapon with intent to cause

bodily injury (i.e. not merely to frighten) with that weapon; (B) serious bodily injury; or

(C) an intent to commit another felony.” Here, the District Court found by a

preponderance of the evidence that Williams had used a dangerous weapon (his car) with

intent to cause bodily injury, and consequently applied § 2A2.2.

         Williams claims this finding was in error because a jury, not a judge, must make

any factual findings that would increase a defendant’s sentence; consequently, the

imposition of § 2A2.2 was incorrect because the jury did not find that the government had

proven Williams’ use of a dangerous weapon beyond a reasonable doubt.6 See Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000). This argument is incorrect, because Williams

ignores Apprendi’s caveat – that this standard applies only when the sentence would be

increased beyond the prescribed statutory maximum. See id. For the reasons given

above, the statutory maximum in this case is 10 years. The District Court’s decision to

apply § 2A2.2 rather than § 2A2.4 – in combination with the other enhancements –

resulted in a 78 month sentence, far below that statutory maximum.

         Accordingly, we will affirm the sentence imposed on Williams by the District

Court.




         6
        Williams’ brief improperly states that he was acquitted of the charge that he used
a deadly weapon; this is clearly not the case.

                                              5
