US v. Richard Allen Williams

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:09-cr-00006-FPS-JES-1. Copies to all parties and the district court/agency. [998447181] [09-5048]

US v. Richard Allen Williams

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Date Filed: 10/18/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5048 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. RICHARD ALLEN WILLIAMS, Defendant ­ Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:09-cr-00006-FPS-JES-1) Submitted: September 30, 2010 Decided: October 18, 2010

Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Brendan S. Leary, Assistant Federal Public Defender, Wheeling, West Virginia, for Appellant. Betsy C. Jividen, Acting United States Attorney, Randolph J. Bernard, John C. Parr, Assistant United States Attorneys, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Richard sentence after Allen Williams guilty appeals to his 110-month with prison to

pleading

possession

intent

distribute 312 80-mg oxycodone tablets and 214 30-mg oxycodone tablets in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2006). On appeal, Williams contends the district court erred in denying him a reduction for acceptance of responsibility under U.S.

Sentencing Guidelines Manual (USSG) § 3E1.1 (2008), in denying him a downward departure under USSG § 4A1.3(b), and in denying him a downward variance based on his criminal history arguments. We dismiss the appeal in part and affirm the judgment. We review a sentence imposed by the district court under a deferential abuse-of-discretion standard. United States, 552 U.S. 38, 51 (2007). See Gall v.

The first step in this

review requires us to ensure that the district court committed no significant procedural error, such as improperly calculating the guideline range, failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or failing to adequately explain the sentence. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). then consider the substantive reasonableness of the We

sentence

imposed, taking into account the totality of the circumstances and giving "due deference to the district court's decision." Gall, 552 U.S. at 51. On appeal, we presume that a sentence

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within

a

properly

calculated

guideline

range

is

reasonable.

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Williams first contends the district court erred in denying him a reduction for acceptance of responsibility. review the district court's decision for clear error. We See We

United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007).

"must give `great deference' to the district court's decision because evaluate `[t]he a sentencing judge is in of a unique position to Id.

defendant's

acceptance

responsibility.'"

(quoting USSG § 3E1.1, comment. (n.5)).

"To earn the reduction,

a defendant must prove to the court by a preponderance of the evidence accepted `that he has clearly recognized for his and affirmatively conduct.'"

personal

responsibility

criminal

Id. (quoting United States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996)). "A guilty plea may be evidence of acceptance, but

`it does not, standing alone, entitle a defendant to a reduction as a matter of right.'" Id. (quoting United States v. Harris,

882 F.2d 902, 905 (4th Cir. 1989)). After oxycodone. unlawfully concluded pleading he guilty, did of not the Williams have drug, a tested positive and for was

Because in his

prescription the probation

possession conduct under

officer of At

was USSG

inconsistent § 3E1.1,

with

acceptance (n.1).

responsibility

comment.

sentencing, Williams proffered that he had a lengthy addiction 3

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to pain medication, but had quit using the drugs. after suffering an attack of kidney stones, he

However, took some

oxycodone to relieve the pain.

He acknowledged he could have The

gone to a doctor for a prescription but did not do so.

district court accepted Williams's proffer that he used the drug for kidney stones, but noted the fact that he had not gone to a doctor where it was presumed he would have been given some

medicine or other treatment.

The district court found Williams

had not presented sufficient evidence to show that a reduction for acceptance of responsibility was warranted, and we conclude the court did not clearly err in this finding. Williams next contends the district court erred in

denying his request for a reduction in criminal history category under USSG § 4A1.3(b)(1), and his alternative request for a

variance based on the same arguments.

While he conceded his

criminal history category of V was properly determined under the guidelines, he argued it over-represented the seriousness of his criminal history because his prior convictions were for minor offenses; his sentences for two of the convictions were ordered to be run concurrently; and while many of his convictions were outside the applicable period and not assessed points, his first convictions period. there receiving points were just inside the applicable

After hearing his arguments, the district court found was insufficient reliable 4 information indicating his

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criminal

history

category

substantially

over-represented

the

seriousness of his criminal history or the likelihood that he would commit other crimes to warrant a downward departure. The

court likewise concluded his arguments were not sufficient to warrant a variance, and that a guideline sentence was sufficient but not greater than necessary to address the sentencing factors under § 3553(a). The district court sentenced Williams at the The court's

low end of his 110 to 137-month guideline range.

decision not to grant a downward departure is not reviewable on appeal, and we dismiss this portion of Williams's appeal. Allen, 491 F.3d at 193. See

We further conclude he has shown no

abuse of discretion by the district court in denying a variance and sentencing him at the low end of his guideline range. We therefore dismiss the appeal in part, and affirm the district court's judgment. 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. DISMISSED IN PART; AFFIRMED IN PART

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