US v. Tony William
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:15-cr-00107-H-1. Copies to all parties and the district court. [999987348].. [16-4145]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4145
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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)
Submitted:
November 29, 2016
Before NIEMEYER
Circuit Judge.
and
KING,
Decided:
Circuit
Judges,
December 15, 2016
and
DAVIS,
Senior
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Tony
Obrien
Williams
pleaded
guilty
to
interstate
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
enterprise
involving
prostitution
18 U.S.C. § 1952(a)(3) (2012).
offenses,
in
violation
of
The district court calculated
Williams’ Guidelines range under the U.S. Sentencing Guidelines
Manual
(2015)
at
46
to
57
months’
imprisonment,
imposed
an
upward departure, and sentenced Williams to concurrent terms of
84 months’ imprisonment.
Williams now appeals and challenges
the imposition of the upward departure. 1
We affirm.
The district court determined that an upward departure from
the Guidelines range was reasonable and necessary in Williams’
case
and
imposed
the
departure
in
two
stages.
The
court
determined first that Williams’ criminal history Category of V
substantially underrepresented the seriousness of his criminal
history
and
the
likelihood
he
would
commit
other
crimes
departed upward to a criminal history Category of VI.
§ 4A1.3(a), p.s.
and
See USSG
Second, to account for offense conduct that
1
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.
In his
reply
brief,
however, Williams
withdraws
this
challenge.
We therefore address only Williams’ departure challenge.
2
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did not enter into the determination of the Williams’ Guidelines
range—which included “physical injury” and “extreme conduct”—the
district
court
found
that
an
upward
departure
offense level of 17 to 22 was warranted.
5K2.8, p.s.
from
a
total
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
2
This section of the Guidelines provides that:
If significant physical injury resulted, the court may
increase the sentence above the authorized guideline
range.
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
serious
or
if
the
defendant
(though
criminally
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]
§ 5K2.1.
USSG § 5K2.2, p.s.
3
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Guidelines range.’”
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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
(2007)), cert.
denied,
___
S. Ct.
4575411 (U.S. Oct. 11, 2016).
___,
No.
16–5808,
2016
WL
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
novo.
United States v. Dodd, 770 F.3d 306, 309 (4th Cir. 2014).
“When,
[however],
independent
a
district
rationales
for
court
its
offers
deviation,
an
two
or
more
appellate
court
cannot hold the sentence unreasonable if the appellate court
finds
fault
with
just
one
of
these
rationales.”
United
States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008).
In light of these principles and after review of the record
and
the
parties’
establish
briefs,
reversible
error
we
conclude
by
the
that
district
Williams
court.
fails
to
Assuming
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
issue.
See Snyder v. Phelps, 580 F.3d 206, 216-17 (4th Cir.
4
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He
thus
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fails
to
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establish
reversible
error
by
the
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
contentions
are
adequately
presented
in
the
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
5
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