US v. Tony William
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:15-cr-00107-H-1. Copies to all parties and the district court. .. [16-4145]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
TONY OBRIEN WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Malcolm J. Howard,
Senior District Judge. (5:15-cr-00107-H-1)
November 29, 2016
December 15, 2016
Affirmed by unpublished per curiam opinion.
Anne M. Hayes, Cary, North Carolina, for Appellant. John Stuart
Bruce, United States Attorney, Jennifer P. May-Parker, Barbara
D. Kocher, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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transportation for the purpose of prostitution, in violation of
18 U.S.C. § 2421 (2012), and use of a facility in interstate
commerce with the intent to promote and facilitate a business
18 U.S.C. § 1952(a)(3) (2012).
The district court calculated
Williams’ Guidelines range under the U.S. Sentencing Guidelines
upward departure, and sentenced Williams to concurrent terms of
84 months’ imprisonment.
Williams now appeals and challenges
the imposition of the upward departure. 1
The district court determined that an upward departure from
the Guidelines range was reasonable and necessary in Williams’
determined first that Williams’ criminal history Category of V
substantially underrepresented the seriousness of his criminal
departed upward to a criminal history Category of VI.
§ 4A1.3(a), p.s.
Second, to account for offense conduct that
In his opening brief, Williams also argues that the
district court plainly erred in ordering him to register as a
sex offender as a condition of his supervised release.
We therefore address only Williams’ departure challenge.
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did not enter into the determination of the Williams’ Guidelines
range—which included “physical injury” and “extreme conduct”—the
offense level of 17 to 22 was warranted.
See USSG §§ 5K2.2,
The 84-month sentences the district court imposed
fall at the low end of the resulting upward departure Guidelines
range of 84 to 105 months’ imprisonment.
Williams argues on
appeal that the district court erred when it departed in part
based on USSG § 5K2.2, p.s., 2 because the record lacks reliable
evidence to support a finding that anyone suffered significant
physical injury as a result of his criminal conduct.
We review a district court’s sentence “for reasonableness
‘under a deferential abuse-of-discretion standard,’” whether the
sentence “is ‘inside, just outside, or significantly outside the
This section of the Guidelines provides that:
If significant physical injury resulted, the court may
increase the sentence above the authorized guideline
The extent of the increase ordinarily should
depend on the extent of the injury, the degree to
which it may prove permanent, and the extent to which
the injury was intended or knowingly risked. When the
victim suffers a major, permanent disability and when
such injury was intentionally inflicted, a substantial
departure may be appropriate.
If the injury is less
negligent) did not knowingly create the risk of harm,
a less substantial departure would be indicated.
In general, the same considerations apply as in [USSG]
USSG § 5K2.2, p.s.
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United States v. McCoy, 804 F.3d 349, 351
(4th Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 41
4575411 (U.S. Oct. 11, 2016).
In assessing the district court’s
application of the Sentencing Guidelines, we review that court’s
factual findings for clear error and its legal conclusions de
United States v. Dodd, 770 F.3d 306, 309 (4th Cir. 2014).
cannot hold the sentence unreasonable if the appellate court
States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008).
In light of these principles and after review of the record
without deciding that the district court erroneously departed
from the Guidelines range under USSG § 5K2.2, p.s., the court
additionally based the second stage of its departure decision on
extreme conduct that did not enter into the determination of
Williams’ Guidelines range.
On appeal, Williams does not raise
any challenge to this additional basis underlying the second
stage of the upward departure decision.
By failing to present
any challenge in this regard, Williams has waived review of this
See Snyder v. Phelps, 580 F.3d 206, 216-17 (4th Cir.
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district court in the second stage of its departure decision.
As the second stage of the departure decision is the only stage
Williams challenges, we affirm the criminal judgment.
We dispense with oral argument because the facts and legal
this court and argument would not aid the decisional process.
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