USA v. Byron Williams

Filing

PUBLISHED OPINION FILED. [09-30528 Affirmed ] Judge: EHJ , Judge: PEH , Judge: JWE Mandate pull date is 10/07/2010 for Appellant Byron Ladell Williams [09-30528]

USA v. Byron Williams

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 16, 2010 N o . 09-30528 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee, v. B Y R O N LADELL WILLIAMS, D e fe n d a n t - Appellant.

A p p e a l from the United States District Court fo r the Eastern District of Louisiana, New Orleans Division

B e fo r e JONES, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit Ju dges. J E N N I F E R WALKER ELROD, Circuit Judge: D e fe n d a n t -A p p e lla n t Byron Ladell Williams appeals his conviction of illegal possession of a "Masterpiece MAC-9mm"-style assault rifle in violation of 1 8 U.S.C. § 922(g)(1)1 and his corresponding 108-month prison sentence, r e fle c t in g an upward variance from the Sentencing Guidelines range. Williams c o n t e n d s that: (1) the district court erred in admitting into evidence prior acts t h a t were irrelevant to the charge or unduly prejudicial in violation of Federal
"It shall be unlawful for any person--(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . ." 18 U.S.C. § 922(g)(1).
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No. 09-30528 R u le of Evidence 404(b); (2) the district court abused its discretion under Federal R u le of Evidence 403 by admitting a recorded telephone conversation that was ir r e le v a n t to the case; and (3) the district court committed plain error by c o n s id e r in g Williams's bare arrest record as a basis for an upward variance from t h e Sentencing Guidelines range in determining his sentence. For the reasons s e t forth below, we AFFIRM both Williams's conviction and sentence. I . FACTUAL BACKGROUND O n Sunday, March 30, 2008, New Orleans Police Department Officers B r ia n Sullivan and Joseph Lusk were patrolling the parking lot of the Hollypark a p a r t m e n t s (where several previous crimes had occurred) when they spotted a d o u b le -p a r k e d car with tinted windows. At least two individuals were inside the v e h ic le , one in the driver's seat and the other in the passenger seat directly b e h in d the driver's seat. Some evidence introduced at trial indicated that a

t h ir d person, Kendrick McGee, was in the passenger seat at the time the police fir s t spotted the vehicle but fled before they approached it. As Sullivan's police c r u is e r approached the vehicle, Sullivan observed the rear passenger, Williams, d u c k down, presumably to avoid detection. Moments later, Sullivan exited his c r u is e r and approached the car. At that point, the rear-seat passenger appeared t o lean down and reach between his feet, and suspecting that the passenger was r e a c h in g for a gun, Sullivan pulled open the car door, ordered the passenger out o f the car, and turned him over to Officer Lusk. W h e n Sullivan returned to the vehicle, he peered in through the still-open c a r door and observed a black semi-automatic MAC-9mm in plain view on the r e a r , driver's-side floorboard. Before Sullivan could secure the weapon, Williams a t t e m p t e d to flee the scene but was quickly reapprehended, handcuffed, and p la c e d in the back of the police cruiser. Sullivan then resumed his investigation o f the weapon and determined that it was loaded with twenty-six bullets and h a d its safety switch taped in the "fire" position. The driver, Robert Anderson 2

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No. 09-30528 (w h o was still in the car) told Sullivan that he and Williams were at the H o lly p a r k apartments to meet a resident, that he had picked up Williams a halfh o u r earlier, and that he knew nothing about the gun.2 After being read his M ir a n d a warnings, Williams admitted that he was a convicted felon, and the c o n v ic t io n was confirmed through a computer check. Williams explained that t h e gun was not stolen and that he was holding it for a person named Raven. Nonetheless, he was charged in a one-count indictment of being a felon in p o s s e s s io n of a firearm in violation of 18 U.S.C. § 922(g). P r io r to trial, the government moved to introduce, under Federal Rule of E v id e n c e 404(b), evidence that Williams had been arrested on four separate o c c a s io n s for possessing a firearm. The government urged that this evidence w o u l d be used to prove (1) that Williams knowingly possessed a firearm, (2) in t e n t under a theory of constructive possession, and (3) absence of mistake or a c c id e n t. Williams disputed the admissibility of that evidence, contending that t h e arrest and conviction records were not probative of his guilt and that the p r e ju d ic ia l impact of admitting the evidence greatly exceeded its probative value. T h e district court granted the government's motion in part, allowing the g o v e r n m e n t to admit evidence regarding two of his arrests for firearm p o s s e s s io n . Accordingly, the government presented evidence that Williams was a r r e s t e d for possession of a firearm while in possession of illegal narcotics fo llo w in g an incident in which he threw a gun into shrubbery near an apartment b u i l d i n g while fleeing from a vehicle wrecked in a high-speed chase. It also p r e s e n t e d evidence of Williams's arrest for possession of a firearm with an o b lite r a t e d mark and felon in possession of a firearm where, following a highs p e e d chase, police found an assault rifle leaning against the center console of

With the exception of the firearm, Sullivan's search of the vehicle revealed only a cup containing frozen daiquiri on the passenger-side floorboard. Williams admitted that the daiquiri was his and was thus issued a citation for violating the open-container law.

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No. 09-30528 t h e car from which Williams had fled. The government entered these instances o f similar criminal conduct through the testimony of Wesley Humbles, an officer o f the New Orleans Police Department, and Glen Webber, an officer of the J e ffe r s o n Parish Sheriff's Office. Prior to the introduction of that evidence, the c o u r t instructed the jury that the evidence could be considered only for purposes o f determining "if the defendant had the motive, state of mind, or the intent to c o m m it the crime charged in the indictment, or to show the defendant's absence o f mistake or accident." The government also introduced eight recordings of jailhouse calls between W illia m s and various persons including his mother and McGee. The government a lle g e d that these calls supported the testimony of Officer Sullivan and that W illia m s had admitted that he handled the gun and attempted to hide it before t h e officers approached. The defense objected to the admission of the final r e c o r d e d telephone call ("Track 8") between Williams and his mother as unduly p r e ju d ic ia l under Rule 403. On the recording, Williams's mother discussed her e ffo r t s to find Anderson and convince him to testify at Williams's trial. On the r e c o r d in g , she told Williams that she had enlisted McGee's help in getting A n d e r s o n to testify, and that she and McGee would "make sure [Anderson] do it ." Williams assented to this plan. The government justified admitting the e v id e n c e on the grounds that Track 8 was relevant to identifying McGee, whose n u m b e r was mentioned in the phone call, and clarifying his role in order to d e t e r m in e the ultimate issue of whether Williams possessed the firearm. The d e fe n s e objected that the evidence was unduly prejudicial because it was c u m u la t iv e of other evidence admitted for the purpose of identifying McGee and s e r v e d only to suggest witness intimidation. The court admitted the call, but o r d e r e d the government not to argue that the call itself suggested any improper con d u ct.

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No. 09-30528 A t the close of the three-day trial, the district court called a charge c o n f e r e n c e and issued jury instructions on actual, constructive, sole, and joint p o s s e s s io n . The defense did not object to the instructions, and the jury returned a guilty verdict on the single-count indictment. Williams made a post-judgment m o t io n for acquittal on the basis that the government had not proven Williams's "k n o w in g and intentional possession" of the gun, but the district court denied the m o tio n . T h e district court conducted a sentencing hearing in June 2009 to receive e v id e n c e in support of the government's motion for an upward departure on the b a s is that Williams's criminal history was under-represented by the Guidelines. It also considered Williams's objection to the Pre-Sentence Report's

r e c o m m e n d a t io n that he receive a two-level enhancement for obstruction of ju s tic e based on the conversation recorded on Track 8. The government

s u b m it t e d testimony regarding Williams's five prior gun-possession arrests, for w h ic h there were no convictions, along with testimony regarding Williams's a r r e s t for second-degree murder. The court granted the defense's objection to the enhancement for o b s t r u c t io n of justice and denied the government's motion for an upward d e p a r t u r e based on the under-representation of criminal history. However, the d is t r ic t court granted an upward variance pursuant to 18 U.S.C. § 3553(a), citing s e v e r a l factors including the serious nature of Williams's offense, his prior a r r e s t s for possession of a weapon for which the government provided t e s t im o n y ,3 his prior convictions, and the fact that he committed the instant o f f e n s e while on parole. In determining the need "to protect the public from fu r t h e r crimes of the defendant," § 3553(a)(2)(C), the court additionally

The government called witnesses to establish Williams's prior arrests for gun possession, for which there were no convictions, and to establish his involvement in a murder for which he had been arrested, but not convicted.

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No. 09-30528 c o n s id e r e d that Williams had accumulated, over a short time-span, twenty-two a r r e s t s not resulting in convictions. Based on the § 3553(a) factors, the district c o u r t rejected the 51-to-63-month guideline range as inadequate and sentenced W illia m s to 108-months imprisonment. Williams has filed a timely appeal, challenging the admission of evidence o f two of his prior arrests and Track 8, and also the district court's consideration o f his arrest record in imposing the 45-month upward variance. I I . DISCUSSION A . Admission of Rule 404(b) Evidence I n United States v. Beechum, we established a two-prong test for d e t e r m in in g if evidence of a defendant's prior wrongs is admissible under F e d e r a l Rule of Evidence 404(b): such evidence is admissible only if (1) it is r e le v a n t to an issue other than the defendant's character, and (2) its probative v a lu e is not substantially outweighed by undue prejudice to the defendant, and t h e evidence meets the other requirements of Rule 403. Beechum, 582 F.2d 898, 9 1 1 (5th Cir. 1978) (en banc). Williams alleges that the district court's decision t o admit evidence regarding two of his prior arrests for gun possession violated b o th prongs of this test. He first contends that the evidence was relevant to his c h a r a c t e r alone because the case was one of actual possession--a theory for w h ic h such convictions would be irrelevant. Second, he alleges that the evidence fa ile d to satisfy the second prong of the Beechum test, which requires that Rule 4 0 4 (b ) evidence "possess probative value that is not substantially outweighed by it s undue prejudice" in accordance Rule 403. Id. i. Standard of Review

"Generally, we review a trial court's decision to admit evidence for abuse o f discretion." United States v. Akpan, 407 F.3d 360, 373 (5th Cir. 2005) (citation o m it t e d ). But where the defendant did not object to the evidence on the basis p r e s e n t e d on appeal, we review the district court's evidentiary ruling for plain 6

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No. 09-30528 e r r o r . See United States v. Burton, 126 F.3d 666, 671 (5th Cir. 1997). With r e g a r d to Williams's first point of error, the government contends that plaine r r o r review is required because Williams's attorney never objected to the Rule 4 0 4 (b ) evidence on the ground that the government's case was solely one of a c t u a l possession. Conversely, Williams insists that the proper standard is a b u s e of discretion. We need not resolve which standard is appropriate because, a s we explain below, the evidence was properly admitted as relevant to an issue o t h e r than his character. Beechum, 582 F.2d at 911. Williams raised his undue p r e ju d ic e objection during trial, so we review the court's Rule 403 ruling for clear a b u s e of discretion. See United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2 0 0 7 ). ii. Relevance of Rule 404(b) Evidence to an Issue Other than C h ara cte r A bedrock principle of the Federal Rules of Evidence is that "relevant e v id e n c e is admissible except as otherwise provided." United States v. Jones, 4 8 4 F.3d 783, 786 (5th Cir. 2007) (quoting Fed. R. Evid. 402). Under Rule 4 0 4 (b ), evidence of a person's crimes, wrongs, or other acts is "not admissible to p r o v e the character of a person in order to show action in conformity therewith." But where there is some justification "for receiving evidence of the nature of p r io r acts on some issue other than status (i.e. to prove . . . knowledge, identity, o r absence of mistake or accident . . . ), Rule 404(b) guarantees the opportunity t o seek its admission." Old Chief v. United States, 519 U.S. 172, 190 (1997) (in t e r n a l quotation marks and citation omitted). I n the context of a weapon-possession case, Rule 404(b) evidence of intent is relevant to a theory of constructive possession, but not to a theory of actual p o s s e s s io n . See Jones, 484 F.3d at 788. To demonstrate constructive possession, t h e government must show that the defendant exerted ownership, dominion, or c o n t r o l over an object, or over the premises where the object was found. See 7

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No. 09-30528 U n ite d States v. Torres, 114 F.3d 520, 524 (5th Cir. 1997). Evidence of

k n o w le d g e and intent is critical in constructive-possession cases, as "[a] d e fe n d a n t will often deny any knowledge of a thing found in an area that is p la c e d under his control (e.g., a residence, an automobile) or claim that it was p la c e d there by accident or mistake." Jones, 484 F.3d at 788. The

" `p a r a d ig m a t ic constructive possession scenario'" in which contraband is found u n d e r the defendant's seat in a car presents "`a classic case for introducing prior in s t a n c e s of gun possession, since the government would otherwise find it e x t r e m e ly difficult to prove that the charged possession was knowing.'" Id. at 7 9 0 (quoting United States v. Garner, 396 F.3d 438, 442-43 (D.C. Cir. 2005)). By c o n t r a s t , such evidence is not relevant under an actual possession theory b e c a u s e the government must show only that the defendant was aware that "(1) h e physically possesses the thing, and (2) the thing he possesses is contraband." Id. at 788.4 T h is distinction between the evidentiary requirements for actual and c o n s t r u c t iv e possession formed the basis of our holding in United States v. J o n e s -- t h a t the trial court erred by admitting the factual basis of a defendant's p rior firearm-possession arrest because the government's case could support only a finding of actual possession, not constructive possession. See Jones, 484 F.3d a t 790-91. Williams contends that Jones compels the same result here, as "the in s t a n t prosecution was based on actual possession" and "the evidence did not s u p p o r t a conviction based on constructive possession." Because the government p r o v id e d sufficient evidence to support a theory of constructive possession in this in s t a n c e , we find Jones to be inapposite.

Knowledge evidence is not relevant because generally, "where the government has shown that the defendant had a firearm under his immediate physical control, any contention that he did not know the nature of what he possessed is effectively precluded." Jones, 484 F.3d at 788.

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No. 09-30528 I n Jones, we held that Rule 404(b) evidence could not be admitted to s u p p o r t a theory of constructive possession where neither the testimony of the g o v e r n m e n t 's sole witness nor that of the defendant's witness could support a t h e o r y of constructive possession. See id. at 788-91. There, the government's s o le witness, a police detective, testified that he saw the defendant possess an o b je c t and toss it beneath a house, which the defendant did not own or occupy. The police later retrieved a gun from that location. The defendant's eyewitness d is p u t e d that account, testifying that the defendant had never possessed the gun a n d was not near the house. Id. at 785. Under these circumstances, we held t h a t the jury had a choice between two stories, neither of which supported a t h e o r y of constructive possession. If the jury disbelieved the detective's

o b s e r v a t io n of actual possession while still believing that the officer followed the d e fe n d a n t into the alley, the "credited facts would present neither a `p a r a d ig m a t ic constructive possession' scenario (contraband found under d e fe n d a n t 's seat in a car) nor a `classic case' for introducing 404(b) evidence." Id. a t 790. The jury would instead "be left with the picture of a man walking, r u n n in g , or standing next to a house that he did not own, rent, occupy, or o t h e r w is e exercise any dominion over, underneath which a gun just happened t o be found"--evidence too weak to justify a conviction for constructive p o s s e s s io n . Id. Thus, it was error to admit the Rule 404(b) evidence in what was " e x c lu s iv e ly an actual possession case." Id. Turning to the instant case, we cannot conclude that the government's c a s e against Williams was exclusively one of actual possession because, unlike in Jones, the government has presented sufficient evidence to support a theory o f constructive possession. Here, undisputed witness testimony established that t h e gun was found under Williams's seat in the vehicle--the "paradigmatic c o n s t r u c t iv e possession" scenario in which Rule 404(b) evidence is warranted. Id. Williams insists that Jones nevertheless controls because the government 9

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No. 09-30528 a ls o submitted evidence of actual possession, but the propagation of this a lt e r n a t iv e theory in no way negates the government's well-supported theory of c o n s t r u c t iv e possession. Nevertheless, Williams argues that the district court should have withheld it s ruling on the government's Rule 404(b) motion until such a time that the c o u r t could be certain that the government's evidence would actually support a t h e o r y of constructive possession. While this may have been a prudent decision b y the court in hindsight, no one at the pre-trial hearing put the court on notice t h a t the case could become solely one of actual possession. And though such e v id e n c e would be inappropriate in that instance, we do not require our district ju d g e s to be clairvoyant to avoid clear error. In any event, the evidence presented at trial bore out the propriety of the d is t r ic t court's pre-trial ruling. Williams's argument that the government's case r a d ic a lly transformed into one of actual possession is thoroughly undercut by the fa c t that any such transformation proved imperceptible at trial, even to the d e fe n s e . The government introduced the Rule 404(b) evidence prior to its

in t r o d u c tio n of the jailhouse recordings--the alleged actual-possession e v id e n c e -- s o we agree that Williams could not have discovered a shift in the g o v e r n m e n t 's theory at the time his arrests came into evidence. But at the close o f the government's case in chief, at which point the totality of the government's c a s e had been fully revealed, Williams moved for acquittal without apprising the c o u r t that the case had become one of actual possession. Rather, defense counsel a r g u e d that the government had not met its evidentiary burden, but conceded t h a t the "best that the government has done" toward this end was presenting O ffic e r Sullivan's testimony that he found the gun "in proximity to where Mr.

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No. 09-30528 W illia m s had sat." Per defense counsel's own words, the government's strongest c a s e was for constructive possession.5 In short, our review of the record reveals that, throughout trial, the g o v e r n m e n t 's theory of the case remained consistent with the description given in the government's pre-trial motion to admit evidence of Williams's arrests p u r s u a n t to Rule 404(b). The evidence was relevant to the elements of

c o n s t r u c t iv e possession, so the first prong of the Beechum test is satisfied. iii. Rule 403 Balancing Test

W illia m s argues, alternatively, that the probative value of the evidence of his two arrests was substantially outweighed by the risk of unfair prejudice, in violation of Rule 403 and the second prong of the Beechum test. See Beechum, 5 8 2 F.2d at 911. We review the district court's Rule 403 ruling "giv[ing] great d e fe r e n c e to the court's informed judgment and will reverse only after a clear s h o w in g of prejudicial abuse of discretion." United States v. Peden, 961 F.2d 517, 5 2 1 (5th Cir. 1992). "[T]he central concern of rule 403 is whether the probative value of the e v id e n c e sought to be introduced is substantially outweighed by the danger of u n fa ir prejudice." Beechum, 582 F.2d at 913 (internal quotation marks omitted). There is no question that the probative value of the testimony regarding W illia m s 's two arrests was great. Prior acts, especially those involving

p o s s e s s io n , are "highly probative" of a defendant's intent. United States v. W illis , 6 F.3d 257, 262 (5th Cir. 1993), overruled on other grounds by Bailey v. U n ite d States, 516 U.S. 137 (1995). Both of Williams's extrinsic offenses were

We also note that at the close of trial, the court issued jury instructions on both actual and constructive possession, and the defense made no objection to the instruction on constructive possession.

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No. 09-30528 fa c t u a lly similar to the instant case,6 indicating that he had both the knowledge o f the gun's presence and the intent to exercise dominion over it--the same in t e n t and knowledge evinced in the extrinsic offenses. But while the

s im ila r it ie s between Williams's extrinsic offenses and the charged crime h e i g h t e n e d the probative value of the evidence, they also increased the everp r e s e n t risk of unfair prejudice by inferring propensity. See Beechum, 582 F.2d a t 915 & n.20; see also Old Chief v. United States, 519 U.S. 172, 182­83 (1997). T h is danger is "particularly great where, as here, the extrinsic activity was not t h e subject of a conviction." Beechum, 582 F.2d at 914. We are nevertheless convinced that the evidence was properly admitted. T h e district court issued appropriate limiting instructions to the jury both when t h e evidence was admitted and later during the jury charge, tempering the risk o f unfair prejudice against Williams. Prior act evidence is often a necessity in c o n s t r u c t iv e possession cases, and Williams has not shown that the government c o u ld have admitted alternative evidence of "substantially the same or greater p r o b a t iv e value but a lower danger of unfair prejudice." Old Chief, 519 U.S. at 1 8 3 . Accordingly, we conclude that the court did not abuse its discretion by a d m it t in g the evidence. B . Admission of Track 8 W illia m s contends that the district court erred by admitting Track 8, a r e c o r d e d jailhouse conversation between Williams and his mother, Hilda W illia m s , on the basis that the track improperly suggested that he had in t im id a t e d one of his own witnesses to testify on his behalf. According to W illia m s , the tape possessed virtually no probative value, and that any such v a lu e was "substantially outweighed by the danger of unfair prejudice" arising
The factual circumstances of the two admitted arrests were strikingly similar to those in the instant case. In each incident, Williams possessed a firearm while he was a passenger in a vehicle, and he later attempted to create distance between himself and the firearm, either by discarding it or by fleeing the vehicle and leaving the firearm inside.
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No. 09-30528 f r o m the improper inference of witness intimidation. See Fed. R. Evid. 403. Defense counsel properly objected to the admission of the conversation at trial o n that basis. "The standard for reviewing an alleged violation of Federal Rule o f Evidence 403 . . . is `especially high' and requires a `clear abuse of discretion' fo r reversal." United States v. Setser, 568 F.3d 482, 495 (5th Cir. 2009). Any e r r o r in admitting such evidence is subject to harmless error review, and r e v e r s a l is not required unless there is a "reasonable possibility that the im p r o p e r ly admitted evidence contributed to the conviction." United States v. M e n d o z a -M e d in a , 346 F.3d 121, 127 (5th Cir. 2003) (internal quotation marks a n d citation omitted), cert. denied, 130 S.Ct. 437 (2009). The court delayed ruling on Track 8 until after the jury heard seven prior t r a c k s of Williams's conversations with Hilda Williams and McGee. The

g o v e r n m e n t argued that the previous seven tracks demonstrated that Williams h a d discussed the circumstances of his arrest with both Hilda Williams and M c G e e , and that Byron Williams recounted conflicting stories to them about w h e t h e r he had been in Anderson's car immediately before his arrest. The g o v e r n m e n t sought to admit Track 8 to show that Byron Williams "agree[d] with s t a t e m e n t s that his mother specifically ma[de]" and to show that both Anderson a n d Kendrick had been in the car prior to the encounter with the police officer. Defense counsel objected on the basis that the following exchange improperly s u g g e s t e d that he and his mother had attempted to intimidate his witness, R o b e r t Anderson,7 the driver of the car in which Byron Williams was arrested: B y r o n [Williams]: M o m m a [Hilda]: B yron : [S ]o you had talked to both of them. Y eah. I probably call him, so you had, so you h a d talked to both of them.

Anderson was subpoenaed to testify for the defense, but he invoked his Fifth Amendment right and did not testify.

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No. 09-30528 Y e a h , I talked to both of them and K e n d r ic k said he knew he was going to m a k e sure Rob handle this business. He s a i d we going, he going to handle it and I s a id do you think he is going to do it and K e n d r ic k said, yeah, he's going to do, we g o in g to make sure he do it. T h e conversation occurred after defense counsel encountered difficulties locating A n d e r s o n , and Hilda Williams had agreed to help find him. Because the jury w a s not aware of these difficulties when the tape was played, Williams argues t h a t he was unfairly prejudiced because the jury could have interpreted the c o n v e r s a t io n as a plan to intimidate Anderson into giving exculpatory t e s t im o n y .8 A s s u m in g arguendo that the evidence was improperly admitted, we do not r e v e r s e because Williams has not demonstrated a reasonable possibility that the a d m is s io n of Track 8 contributed to his conviction. See Mendoza-Medina, 346 F .3 d at 127. We cannot say that the brief, vague exchange on Track 8 M om m a:

c o n t r ib u t e d to Williams's conviction in light of the substantial evidence of W illia m s 's guilt presented at trial. See United States v. Williams, 957 F.2d 1238, 1 2 4 3 (5th Cir. 1992). Officer Sullivan testified that he saw Williams moving s u s p i c i o u s ly while he was seated in the vehicle, and Sullivan retrieved the w e a p o n immediately underneath the seat that Williams had occupied. Williams's prior arrests in similar circumstances indicated that he was aware o f the weapon and intended to possess it. His statements on Tracks 1­7, the a d m is s io n of which is not challenged here, likewise corroborated Sullivan's t e s t im o n y . Further, in his recorded conversation with McGee, Williams

a d m it t e d that he had attempted to hide the gun in Anderson's car before he was

During sentencing, the government sought a sentencing enhancement for obstruction of justice based on this exchange, but the district court denied the request. It found that Williams's attorney had tasked Williams's mother with locating witnesses, and that she carried out that duty without obstructing justice.

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No. 09-30528 appreh en ded. This evidence is more than sufficient to support Williams's

c o n v ic t io n , so any error by the district court in admitting Track 8 was ultimately h a r m le s s . C . Williams's Sentencing Variance W illia m s contends that the district court erred by taking into account his " b a r e arrest record"9 when it imposed a 108-month sentence, an upward variance fr o m the 51-to-63-month Sentencing Guidelines range. Williams did not raise a n objection below, so we review for plain error. United States v. Olano, 507 U.S. 7 2 5 , 731-32 (1993). Consequently, Williams must demonstrate (1) the district c o u r t committed error, (2) the error was plain or obvious, (3) the error affected h is substantial rights, and (4) the error "seriously affect[ed] the fairness, in t e g r it y , or public reputation of judicial proceedings." Id. at 732 (citations and in t e r n a l quotation marks omitted). Whether a court commits error by considering "the mere fact [of a d e fe n d a n t 's ] prior arrests" in imposing an upward variance pursuant to 18 U .S .C . § 3553(a) is an issue of first impression in this circuit. See United States

The term "bare arrest record" comes not from our own precedent, but from the Third Circuit's decision in United States v. Berry, 553 F.3d 273, 284 (3d Cir. 2009). There, the Third Circuit held that a district court committed plain error by increasing a defendant's sentence based on the court's inference that he committed particular acts evidenced only by a handful of arrest records that were uncorroborated by additional evidence. Id. In this circuit, it is error for a district court to impose an upward departure based on the "mere fact of prior arrests," or "arrests, standing alone." United States v. Jones, 444 F.3d 430, 434, 436 (5th Cir. 2006). These phrases have essentially the same meaning as the term "bare arrest record" --an arrest for which the only evidence is an arrest record. Berry, 553 F.3d at 284; Jones, 444 F.3d at 434, 436. Unlike "arrests, standing alone," arrests that are corroborated by record evidence or testimony may be considered in any event. See United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008) (noting that the defendant's arrests did not "stand alone," and thus were properly considered, where they were corroborated by additional record evidence). However, the district court's consideration of other, unrelated factors, such as the defendant's convictions for other acts, does not alleviate the error that the court commits by considering the "mere fact" of a defendant's arrests in imposing an upward departure; such additional considerations go only to whether the error ultimately affected the defendant's substantial rights. See Jones, 444 F.3d at 436.

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No. 09-30528 v . Lopez-Velasquez, 526 F.3d. 804, 807 (5th Cir. 2008) ("[T]his court has not . . . h e ld that prior arrests may not be factored into a non-Guidelines sentence p u r s u a n t to § 3553(a).") (holding that the district court's consideration of the d e fe n d a n t 's arrests was not improper where those arrests were supported by r e c o r d evidence). Williams relies on this court's precedent holding that it is error fo r a district court to consider the "mere fact of [a defendant's ] prior arrests" in i m p o s in g an upward departure in support of his argument that it is likewise e r r o r here. See United States v. Jones, 444 F.3d 430, 436 (5th Cir. 2006); see also U n ite d States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007). I n Jones, 444 F.3d at 434-36, we first considered the question of whether a district court commits plain error by considering the "mere fact" of an arrest in imposing an upward departure. We answered the question in the affirmative, fin d in g that the district court's consideration ran afoul of two separate G u id e lin e s provisions: § 4A1.3(a)(1), which requires that an upward departure b a s e d on the likelihood that the defendant will commit other crimes be s u p p o r t e d by "reliable information"; and §4A1.3(a)(3), which explicitly prohibits a court from considering a prior arrest record in granting an upward departure. See Jones, 444 F.3d at 436 (citing Williams v. United States, 503 U.S. 193, 200 (1 9 9 2 ) ("[I]t is an incorrect application of the Guidelines for a district court to d e p a r t from the applicable sentencing range based . . . on a factor that the C o m m is s io n has expressly rejected as an appropriate ground for departure.")). We did not vacate the sentence, however, because the defendant failed to show t h a t the error affected his substantial rights where (1) the sentence was r e a s o n a b le and (2) the district court's consideration of numerous other factors r e v e a le d no reasonable probability that his sentence would have been lower but fo r the consideration of his arrests. See id. Relying on language from Jones stating that "[a]rrests, standing alone, do n o t constitute reliable information under either the Guidelines or our precedent 16

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No. 09-30528 p r e -d a t in g the Guidelines," id. at 434 (citing United States v. Cantu-Dominguez, 8 9 8 F.2d 968, 971 (5th Cir. 1990); United States v. Labarbera, 581 F.2d 107, 109 (5 t h Cir. 1978)), Williams argues that the district court erred by recounting W illia m s 's twenty-two arrests accumulated in a time-frame of only "five years o r so" in the course of evaluating whether the community would be imperiled by W illia m s 's future crimes.1 0 Though we have not addressed whether the court's a c t io n would constitute error under our pre-Guidelines precedent, two of our s is t e r circuits have considered whether, even outside the context of an upward d e p a r t u r e , a sentencing court may properly consider conduct supported only by a n arrest record or a handful of arrest records and held that it may not. See U n ite d States v. Berry, 553 F.3d 273, 284 (3d Cir. 2009) (holding that a district c o u r t reversibly erred by increasing a defendant's sentence on the basis of a d e fe n d a n t 's "bare arrest record," though the sentence imposed remained within t h e Guidelines range); United States v. Zapete-Garcia, 447 F.3d 57, 61 (1st Cir. 2 0 0 6 ) (holding that a district court reversibly erred by relying on the record of a single prior arrest as justification for imposing an upward variance because " a r r e s t happens to the innocent as well as the guilty."). But even these circuits t h a t have held that a court may not infer behavior from a single arrest or a small n u m b e r of arrests have recognized that an extensive pattern of arrests might p r o p e r ly be considered.11

Apart from an additional note that Williams had been arrested seven times since 2005, the court made no references to arrests that were not also the subject of testimony or record evidence during its lengthy discussion of the § 3553(a) factors. See Zapete-Garcia, 447 F.3d at 61 (noting that, in the district court's evaluation of a sentence enhancement, "a series of past arrests might legitimately suggest a pattern of unlawful behavior even in absence of any convictions."); see also Berry, 553 F.3d at 284-85 (acknowledging that "there may be situations where the number of prior arrests, and/or the similarity of prior charges to the offense of conviction, becomes so overwhelming and suggestive of actual guilt that they become exceedingly difficult to ignore," but declining to decide "when the frequency and/or pattern of arrests becomes so egregious that it could support a conclusion that the arrests are probative or prior criminality"); cf. United States v.
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No. 09-30528 B e c a u s e our review here is for plain error, we need not resolve today w h e t h e r it is error for a district court to consider a defendant's "bare arrest r e c o r d " in imposing a non-Guidelines sentence, or whether an extensive pattern o f arrests possesses greater evidentiary value than a single arrest record such t h a t it may be considered when the district court imposes a non-Guidelines s e n te n c e . Even assuming arguendo that the court erred in considering his a r r e s t s , we still must determine "[w]hether the consideration of prior arrests in c o n ju n c t io n with other, permissible, factors affected [Williams's] substantial r ig h t s and whether, assuming it did, the error seriously affect[s] the fairness, in t e g r it y or public reputation of judicial proceedings." Jones, 444 F.3d at 436. Here, the district court's lengthy and weighted discussion of other sig n ific a n t , permissible factors belies Williams's argument that the alleged error a ffe c t e d his substantial rights. See United States v. Villegas, 404 F.3d 355, 364. The district court preceded its analysis of the 18 U.S.C. § 3553(a) factors by d e c la r in g that the maximum sentence in the guideline range was "woefully in a d e q u a t e " in light of his two prior adult felony convictions, his four juvenile fe lo n y convictions, his commission of the instant offense while on probation, and t h e fact that he was wanted in Texas for parole violations. In considering W illia m s 's history and characteristics, the court noted that he had four separate ju v e n ile convictions that were unaccounted for in his criminal-history c a lc u la t io n , including two convictions for the distribution of cocaine, a conviction fo r simple burglary, and a conviction for unauthorized use of a motor vehicle.1 2

Walker, 98 F.3d 944, 948 (7th Cir. 1996) (reasoning that the defendant's twenty-three arrests were cumulatively probative of underlying criminal behavior, but holding that the court should not have considered the pattern of arrests in the context of imposing an upward departure because § 4A1.3 of the Guidelines expressly prohibits such considerations). The court also emphasized the significance of a few of Williams's arrests for which the government had submitted testimony--his arrest for second degree murder and three arrests for possession of a firearm, including one with an obliterated serial number.
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No. 09-30528 T h e district court also relied heavily upon on his convictions--not the mere fact o f his arrests--in evaluating the remaining section 3553(a) factors. The court fo u n d that a Guidelines sentence would not afford adequate deterrence to c r im in a l conduct because the light sentences he received for past convictions had n o t deterred him from committing new crimes. Although the court took into a c c o u n t the rate of Williams's prior arrests in evaluating the need to protect the c o m m u n it y from further crimes, it gave significant consideration to the e g r e g io u s facts of the instant case: "the defendant had in his possession a [MAC] 9 millimeter semiautomatic handgun gun which contained a live round in the c h a m b e r and a high capacity magazine loaded with 25 live rounds. The manual s a fe t y on the weapon was held in the off position by electrical tape." In summary, where the district court based its variance on Williams's m u lt ip le felony convictions, his persistence in committing crimes despite the b e n e fit of lenient sentencing, the brazen nature of his conviction for being a felon in possession of a loaded MAC 9 millimeter semiautomatic handgun with the s a fe t y disabled, and his arrests for similar crimes supported by testimony p r e s e n t e d at trial and at the sentencing hearing, Williams has not demonstrated a reasonable probability that he would have received a lesser sentence but for t h e court's consideration of his "bare" arrest record. We also find that his s e n te n c e is objectively reasonable because the § 3553(a) factors support it. See U n ite d States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008). The district court t h o r o u g h ly analyzed these factors, and its limited comment on his arrest record d o e s not impugn its conclusion that the significant variance was justified. Finally, we find that Williams has not satisfied the last factor of the plaine r r o r -r e v ie w inquiry. His single sentence of argument on this prong is

in s u ffic ie n t to demonstrate that the alleged error affected the fairness, integrity, o r public reputation of judicial proceedings. See Olano, 507 U.S. at 732.

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No. 09-30528 C O N C L U S IO N F or the foregoing reasons, we AFFIRM Williams's conviction and sentence.

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