US v. Williams

Filing 920080604

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-5004

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JONATHAN CARNELL WILLIAMS, Defendant - Appellant.

On Remand from the Supreme Court of the United States. (S. Ct. No. 07-9289)

Submitted:

May 12, 2008

Decided:

June 4, 2008

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Robert C. Bonsib, MARCUS & BONSIB, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Bryan E. Foreman, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Jonathan Carnell Williams appealed the district court's sentence imposed after we remanded for resentencing consistent with the rules announced in United States v. Booker, 543 U.S. 220 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir. 2005). See

United States v. Williams, No. 03-4418, 2005 WL 2464343 (4th Cir. Oct. 6, 2005) (unpublished) (affirming conviction but vacating and remanding sentence). At resentencing, the court imposed the same

sentence, 262 months' imprisonment, or the bottom of the Sentencing Guidelines range of imprisonment. On appeal, Williams claimed the

court erred by giving a sentence within the Guidelines a presumption of reasonableness and defaulting to a Guidelines sentence without giving full consideration to the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) sentencing factors. He also claimed the court gave

undue weight to acquitted conduct in determining his Guidelines sentence. Finding no error, we affirmed. See United States v.

Williams, No. 06-5004, 2007 WL 3390924 (4th Cir. Nov. 13, 2007) (unpublished). On March 24, 2008, the Supreme Court granted

Williams' petition for writ of certiorari, vacated this court's opinion and remanded for further consideration in light of Gall v. United States, 128 S. Ct. 586 (2007). Appellate courts review sentences imposed by district courts for reasonableness, applying an abuse of discretion standard. Gall, 128 S. Ct. at 597; United States v. Pauley, 511 F.3d 468, 473

- 2 -

(4th Cir. 2007). When sentencing a defendant, a district court must first properly calculate the Guidelines range. "the starting point and the initial benchmark." at 596. The Guidelines are Gall, 128 S. Ct.

Next, the court should give the parties the opportunity to The court is

argue for whatever sentence they deem appropriate.

then instructed to consider the § 3553(a) factors in light of the parties' requests with respect to the at 473. sentence. Pauley, 511 F.3d

In the Fourth Circuit, "[a] sentence within the proper United

Sentencing Guidelines range is presumptively reasonable."

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding

presumption of reasonableness for within-Guidelines sentence). This presumption can be rebutted only by showing that the sentence is unreasonable when measured against the § 3553(a) factors. United The

States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).

district court, however, must not presume that a sentence within the Guidelines is reasonable. Gall, 128 S. Ct. at 596-97. The court

must instead "make an individualized assessment based on the facts presented." Id. at 597.

Upon review, we must first determine whether the district court committed any significant procedural error, Gall, 128 S. Ct. at 597, such as "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

- 3 -

clearly erroneous facts, or failing to adequately explain the chosen sentence--including an explanation for any deviation from the Guidelines range." Id. If we find the sentence is procedurally

sound, we must next "consider the substantive reasonableness of the sentence." Id. We must "take into account the totality of the including the extent of any variance from the

circumstances,

Guidelines range.

If the sentence is within the Guidelines range,

the appellate court may, but is not required to, apply a presumption of reasonableness." Id.

We find the district court appropriately followed the post-Booker sentencing procedure. It properly determined the We find no procedural

offense level and criminal history category. error.

We further find the sentence was substantively reasonable.

There is no evidence the district court considered a sentence within the Guidelines to be presumptively reasonable. We further find the

court did not give disproportionate weight to the acquitted conduct which was part of the relevant conduct. Accordingly, we affirm Williams' sentence. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

- 4 -