USA v. Jesse Williams III

Filing

OPINION and JUDGMENT filed : The judgment of the district court is AFFIRMED. Decision for publication. Martha Craig Daughtrey (AUTHORING), Deborah L. Cook, and Helene N. White, Circuit Judges. **Pursuant to the opinion correction letter of 6/2/14, the opinion attached to this entry has been corrected.--[Edited 06/02/2014 by CL]

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0114p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

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No. 12-2108

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JESSE DANIEL WILLIAMS III,
Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:10-cr-00094-2—Paul Lewis Maloney, Chief District Judge.
Decided and Filed: June 2, 2014
Before: DAUGHTREY, COOK, and WHITE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Melissa M. Salinas, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Toledo,
Ohio, Dennis G. Terez, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio,
for Appellant. Mark V. Courtade, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids,
Michigan, for Appellee.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge.

Jessie Daniels Williams was

convicted by a jury on two counts of possessing cocaine with the intent to distribute and one
count of maintaining a drug-involved premises. He was sentenced as a career offender to a total
of 360 months in prison. He now appeals both his conviction and his sentence, contending
(1) that the almost two-year delay between his first indictment and the commencement of his
trial violated his Sixth Amendment right to a speedy trial; (2) that the district court’s actions in

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allowing the delay to occur violated his rights under the Speedy Trial Act; (3) that he was denied
the effective assistance of counsel; and (4) that he was wrongly classified as a career offender,
rendering his sentence procedurally unreasonable. For the reasons set out below, we find no
reversible error and affirm the district court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Williams was initially indicted by a federal grand jury on April 15, 2010, on charges of
possession of cocaine with intent to distribute, maintaining a drug-involved premises, and being
a felon in possession of a handgun. The charges stemmed from the execution of a search warrant
at Williams’s residence in Lansing, Michigan, that took place ten days earlier. During the
search, police seized a .40 caliber semiautomatic pistol, 1.3 grams of cocaine, and more than
$16,350 in cash in Williams’s bedroom, as well as over 500 grams of cocaine, small amounts of
crack cocaine, significant amounts of money in cash, and assorted drug paraphernalia in the
common areas of the house and in the bedroom belonging to Williams’s roommate, Anthony
Jermaine Wilson. Wilson was also charged in the indictment with maintaining a drug-involved
premises and with possession of more than 500 grams of cocaine with the intent to distribute.
However, because police did not know the whereabouts of either Wilson or Williams, neither
man could be arrested immediately. Williams was eventually picked up by the Lansing police on
July 10, 2010, after they encountered him on the street during the investigation of a reported
home invasion. At the time officers spotted him, Williams was carrying a duffel bag that was
later found to contain large amounts of cocaine, cocaine base, and cash.
After he was arrested, Williams was charged with two state felony drug crimes, both of
which were ultimately dismissed. Nevertheless, he remained in state custody and, after October
8, 2010, in state prison, following his guilty plea to violating the terms of his probation arising
from an earlier state drug conviction. Williams was surrendered to federal marshals in March
2011, and he was arraigned on March 23, 2011. Initially represented by a member of the federal
defender’s office, Sean Tilton, Williams was assigned a new attorney on May 26, based on his
contention that new counsel was necessary because of fundamental disagreements with Tilton
over the prosecution of his case. Tilton agreed that there had been “a certain breakdown in the
attorney/client relationship” that had made communication with Williams “very difficult.” The

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magistrate judge handling the case granted Williams’s motion for a new attorney but warned
Williams that the court would not be inclined to grant a second such motion.
Two weeks later, on June 9, Michael Dunn, a lawyer with 23 years’ experience in federal
court, was appointed to represent Williams. That same day, the government filed a five-count
superseding indictment that charged Williams with two new offenses: one count of possessing
cocaine with the intent to distribute and a second count charging possession of cocaine base with
the intent to distribute, both stemming from seizures of contraband at the time of his arrest on
July 10, 2010, three months after the first indictment was returned. Williams was arraigned on
the superseding indictment on June 27, 2011.
On July 26, 2011, Williams wrote a letter to the court, expressing his concern with the
performance of his lawyer. He claimed that Dunn had “a noticable [sic] grudge against me” and
that Dunn was “more interested in helping the U.S. Attorney find me guilty rather than fighting
to prove my innocence.” The district court construed this letter as a motion to appoint new
counsel and held a hearing on the matter on August 11. During the hearing, Williams explained
that he was dissatisfied with Dunn’s performance because Dunn refused to file the pretrial
motions that Williams had asked him to file. Dunn explained to the court that he had declined to
file the motions because they had no merit and because he did not believe that it would be in
Williams’s best interest to file them. When asked whether he had any additional comments,
Dunn indicated that when Williams wrote his letter to the court complaining about Dunn’s
performance, Dunn himself was “in the process of drafting my first motion to have [replacement]
counsel appointed . . . in 23 years.” Despite Dunn’s testimony that he and Williams “really clash
heads, because [Williams] does not believe I have the ability, the capacity, or the understanding
in order to proceed,” Dunn expressed his willingness to stay on the case if the court wished him
to do so. But Dunn also informed the court that if he were to remain on the case, he would in all
likelihood need to ask for a continuance, explaining that because of his conflict with Williams,
he was behind in his preparation for trial. The district court was agreeable to this resolution of
the matter but instructed Dunn to have Williams personally endorse any motion for continuance
that Dunn filed with the court.

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Dunn filed a motion for a 60-day ends-of-justice continuance, noting that Williams had
agreed to the continuance. However, the motion did not include Williams’s signature. Dunn
indicated that he had “not been able to get Defendant’s signature because of the expedited nature
of this motion” and promised to “supplement at a later date.” The court granted the continuance
and, in an amended order filed on August 26, explained the reasons for the grant. The court also
postponed trial until November 30.
On October 21, just over a month prior to trial, Dunn moved to withdraw as Williams’s
counsel.

His withdrawal was necessary, he said, because there had been a “drastic and

irreconcilable breakdown of the attorney-client relationship” that prevented him from being able
to provide Williams with adequate representation going forward. In the motion, Dunn also
asserted that Williams had repeatedly requested that he withdraw as Williams’s lawyer and noted
the “growing (and very uncomfortable and unproductive) hostility” that Williams exhibited
towards him. After holding yet another hearing on the motion and receiving sealed testimony
from Dunn describing veiled threats that he had received from Williams and his associates if he
did not stop representing Williams, the court granted his motion to withdraw.
Some three weeks later, on November 9, Paul Mitchell was assigned to represent
Williams, the third court-appointed lawyer to occupy this role. On November 21, a day before
the scheduled pre-trial conference, Mitchell filed a motion to dismiss the charges against his
client, on the ground that the date set for Williams’s trial violated the Speedy Trial Act,
18 U.S.C. § 3162(a)(2). At the pre-trial conference the next day, Mitchell informed the court
that he was still reviewing the case to determine whether to file other pre-trial motions. In order
to allow Mitchell adequate time to review the record, the district court entered a sua sponte
ends-of-justice continuance. The court also granted Mitchell until December 16 to file pre-trial
motions and subsequently extended this period by 16 days at Mitchell’s request.
On December 22, the court denied the November 21 motion to dismiss. On January 30,
2012, Williams wrote another letter to the court to complain about the performance of his courtappointed lawyer. The district court construed this as a pro se motion to appoint new counsel
and, after holding a hearing on the motion on February 15, 2012, denied it the next day.

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Trial began on March 6, 2012. On March 8, the jury found Williams guilty of possessing
less than 500 grams of cocaine with the intent to distribute (Count One of the superseding
indictment), maintaining a drug-involved premises (Count Two), and possessing more than
500 grams of cocaine with the intent to distribute (Count Four). The jury found Williams not
guilty of being a felon in possession of a firearm (Count Three).

Count Five, charging

possession of cocaine base, had been dismissed prior to trial at the government’s request.
After trial, Williams sent numerous letters to the district court asking the court to order
attorney Mitchell to file a motion of acquittal on his behalf and expressing continuing frustration
with Mitchell’s performance. At sentencing on August 20, the district court construed these
letters as pro se motions for removal of counsel and denied them, noting that Mitchell had
“vigorously defended [his client], in the Court’s judgment” and that he was “one of the most
experienced and skillful defense lawyers on the Criminal Justice Act appointment list.” The
court also rejected Mitchell’s objections to the presentence report, including an objection to the
report’s recommendation that Williams be classified as a career offender, pursuant to
USSG § 4B1.1. The court instead adopted the recommendations provided in the presentence
report and sentenced Williams as a career offender to a within-guidelines sentence of
360 months. Williams, with the assistance of new counsel, now appeals both his conviction and
his sentence.
II. DISCUSSION
A. Sixth Amendment Right to a Speedy Trial
Williams first argues that his conviction is invalid because the 690-day delay between the
date of his original indictment on the federal charges and the commencement of trial violated his
Sixth Amendment right to a speedy trial.

“In determining whether a defendant’s [Sixth

Amendment] right to a speedy trial has been violated, this court reviews questions of law de
novo and questions of fact under the clearly erroneous standard.” United States v. Jackson,
473 F.3d 660, 664 (6th Cir. 2007) (quoting United States v. Robinson, 455 F.3d 602, 607 (6th
Cir. 2006)). If we find that a defendant’s Sixth Amendment right to a speedy trial was violated,
the charges must be dismissed with prejudice. United States v. Bilsky, 664 F.2d 613, 617 (6th
Cir. 1981).

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In its seminal speedy-trial opinion, Barker v. Wingo, the Supreme Court identified four
factors that courts should take into account when determining whether a defendant’s Sixth
Amendment right has been violated: (1) the “[l]ength of the delay”; (2) “the reason for the
delay”; (3) “the defendant=s assertion of his right”; and (4) “prejudice to the defendant.”
407 U.S. 514, 530 (1972). The first factor is a threshold requirement. Id. “[I]f the length of the
delay is not uncommonly long, then the judicial examination ends.” United States v. Bass,
460 F.3d 830, 836 (6th Cir. 2006) (internal citation and quotation marks omitted). Conversely, a
delay of one year or more is considered “presumptively prejudicial” and, as such, satisfies the
first Barker factor, triggering examination of the remaining three. Id.
In this case, it is undisputed that a delay of more than one year occurred between
Williams’s initial indictment on April 15, 2010, and the commencement of trial on March 6,
2012.

Determining whether Williams’s Sixth Amendment rights were violated therefore

depends upon an analysis of the remaining three Barker factors.
The Reason for the Delay
Courts assign “different weights . . . to different reasons” for the government’s delay.
Barker, 407 U.S. at 531. “Governmental delays motivated by bad faith, harassment, or attempts
to seek a tactical advantage weigh heavily against the government, while neutral reasons such as
negligence are weighted less heavily, and valid reasons for a delay weigh in favor of the
government.” Robinson, 455 F.3d at 607.
There is no question about the constitutional validity of the delay between the date
Williams was first indicted, on April 15, 2010, and his first arraignment on federal charges, on
March 23, 2011. For all but two days of this period, Williams was not in federal custody, either
because he had not yet been apprehended or because he remained in the custody of the State of
Michigan. Hence, he could not be arraigned and his case could not proceed. Williams argues
that the delay was not valid because it was not his fault. But, as we noted in United States v.
Schreane, “[T]he second Barker factor is not a search for a blameless party . . . ; instead, the
concern is with whether the government or the criminal defendant is more to blame for the
delay.” 331 F.3d 548, 554 (6th Cir. 2003) (internal citations, quotation marks, and alteration

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omitted). Here, Williams points to nothing to suggest that the government was more to blame
for the initial delay in apprehending him than he himself, or that it acted in bad faith or was
negligent in failing to locate him.

Nor is there any evidence that the government acted

negligently or in bad faith when it waited until the State of Michigan, which had initial custody
of Williams, dismissed the state drug charges against him before it requested his transfer to
federal court — a common process in cases involving both state and federal jurisdiction. See
Schreane, 331 F.3d at 554-55.
As for the subsequent one-year period between Williams’s arraignment on the
superseding indictment on March 23, 2011, and the commencement of his trial on March 5,
2012, the delay was almost entirely attributable to the antagonistic relationship that Williams
developed with the three attorneys appointed to represent him. Williams argues in response that
these problems stemmed from his attorneys’ persistent efforts to negotiate a plea agreement
despite his clearly-expressed desire to go to trial. What he cannot explain, however, is how this
makes the government or the district court “more to blame for the delay” than the defense.
Indeed, Williams has identified no specific action by the prosecution or the district court that
stymied the progress of his case, other than the court’s decision to grant Dunn’s motion for a
continuance even though Williams had not signed the motion as the court requested. This
situation simply does not constitute dilatory action on the part of the district court, which ruled
promptly on all motions before it — at least those that were properly submitted through counsel
— and acted expeditiously to appoint Williams new representation when necessary.
The Defendant’s Assertion of His Right
The third factor considers whether the defendant effectively asserted his speedy trial
right. Because “[t]he strength of [a defendant’s] efforts will be affected by the length of the
delay, to some extent by the reason for the delay, and most particularly by the personal prejudice,
which is not always readily identifiable, that he experiences, . . . [t]he defendant’s assertion of
his speedy trial right . . . is entitled to strong evidentiary weight in determining whether the
defendant is being deprived of the right.” Barker, 407 U.S. at 531-32. “[F]ailure to assert the
right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id. at 532.

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The government asserts that the first time that Williams or his lawyers communicated his
desire for a speedy trial was on November 21, 2011, when his third attorney, Mitchell, filed a
motion for dismissal based on the court’s alleged violation of the Speedy Trial Act. Williams
insists that he expressed his desire for a speedy trial from the beginning of the proceedings
against him. Indeed, the record shows that Williams insisted on multiple occasions that he
wanted to go to trial, rather than to accept a plea deal. But the record also shows that at the same
time he expressed his desire to go to trial, Williams also wanted defense counsel to file numerous
motions on his behalf or requested the court to appoint new counsel, thereby impeding the
progress of the case at least temporarily. Hence, it is not at all clear that, on those occasions
when Williams purportedly asserted his desire to go to trial, he was insisting on a “speedy” trial
rather than expressing rejection of counsel’s efforts to secure a favorable plea agreement with the
government. Moreover, the fact that he did not assert his right to a speedy trial for some eight
months after he was arraigned and sixteen months after he was arrested is sufficient to “cast
doubt on the sincerity of [the defendant’s] demand.” United States v. Brown, 169 F.3d 344, 350
(6th Cir. 1999).
Prejudice to the Defendant
The last factor to be considered is whether Williams was prejudiced by the delay.
Prejudice is evaluated with respect to the three purposes of the speedy trial right: “(i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to
limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532. “Of these, the
most serious is the last, because the inability of a defendant adequately to prepare his case skews
the fairness of the entire system.” Id.
Williams argues that the time he spent in jail awaiting trial caused him harm, insofar as it
“restrain[ed] . . . his liberty” and forced him to live “under a cloud of anxiety, suspicion, and
often hostility,” quoting Barker, 407 U.S. at 533. However, even if he had not been in federal
custody, he would have remained in state prison for most, if not all, of that time, due to his
conviction for violating probation.1 Furthermore, Williams fails to identify any other way in
1

According to the records of the Michigan Department of Corrections, had Williams not been turned over
to federal marshals on a writ of habeas corpus ad prosequendum on March 11, 2011, the earliest he could have been

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USA v. Williams

which he was prejudiced by the delay. As we have noted, “When a defendant is unable to
articulate the harm caused by delay, the reason for the delay (factor 2) will be used to determine
whether the defendant was presumptively prejudiced.” United States v. Mundt, 29 F.3d 233, 236
(6th Cir. 1994). In this case, because there is no evidence that the government acted in bad faith
or even negligently caused the delay, there can be no presumption of prejudice.
In short, Williams has not been able to demonstrate that the delay was caused by bad
faith or negligence on the part of the government, or that he was prejudiced by it. As a result, his
Sixth Amendment claim must fail.
B. Speedy Trial Act
Williams also argues that the delay between his indictment and his trial violated the
Speedy Trial Act, 18 U.S.C. §§ 3161-3174. That statute requires that a defendant be brought to
trial within 70 days of the date of indictment, the date the indictment was unsealed, or the date of
the initial appearance, whichever date occurs last. 18 U.S.C. § 3161(c)(1). Nevertheless, the Act
carves out a number of exclusions that can toll the running of the 70-day period.

These

excludable periods include “[a]ny period of delay resulting from other proceedings concerning
the defendant,” “any period of delay resulting from the absence or unavailability of the defendant
or an essential witness,” and any period of delay resulting from a continuance “granted by any
judge on his own motion or at the request of the defendant or his counsel or at the request of the
attorney for the Government.” 18 U.S.C. § 3161(h)(1), (3)(A), (7)(A). In order to stop the
speedy-trial clock, however, a continuance must be based on a court’s “findings that the ends of
justice served by taking such action outweigh the best interest of the public and the defendant in
a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). When determining whether the ends of justice
outweigh the public and defendant’s interests in a speedy trial, the Act requires the district court
to

consider

several

factors,

including

“[w]hether

the

failure

to

grant

such

a

continuance . . . would be likely to make a continuation of such proceeding impossible, or result
in a miscarriage of justice” and “[w]hether the failure to grant such a continuance in a
case . . . would deny counsel for the defendant or the attorney for the Government the reasonable
released from jail on the probation-violation sentence was October 6, 2011, and the latest date of discharge was
October 6, 2049.

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time necessary for effective preparation, taking into account the exercise of due diligence.”
18 U.S.C. § 3161(h)(7)(B)(i), (iv). It also requires a court to “set[] forth, in the record of the
case, either orally or in writing, its reasons for finding that the ends of justice served by the
granting of such continuance outweigh the best interests of the public and the defendant in a
speedy trial.” 18 U.S.C. § 3161(h)(7)(A).
Williams argues that the district court abused its discretion under the Act when it granted
a 60-day ends-of-justice continuance on August 18, 2011. He contends that the continuance was
granted on insufficient grounds and, alternatively, that the court failed to adequately explain its
reasons for granting the continuance, as 18 U.S.C. § 3161(h)(7)(A) requires.
Standard of Review
We review the district court’s decision to grant an ends-of-justice continuance under an
abuse-of-discretion standard. United States v. Howard, 218 F.3d 556, 563 (6th Cir. 2000).
Williams argues that the district court abused its discretion when it granted the ends-of-justice
continuance because the statutory factors did not support the grant and because Williams did not
consent to it. Neither argument has merit.
Eighteen U.S.C. § 3161 (h)(7)(B)(iv) allows a court to grant a continuance when “the
failure to grant such a continuance . . . would deny counsel for the defendant . . . the reasonable
time necessary for effective preparation, taking into account the exercise of due diligence.”
Here, Dunn informed the court at the August 11 hearing that he would need additional time to
prepare for trial because the conflict that had arisen between himself and Williams had impeded
his efforts at preparation. Because the district court granted the ends-of-justice continuance on
this basis, as it indicated in the order, the decision was well within the discretion afforded district
courts by statute.
Williams argues that because the order indicated that the continuance was intended to
allow Dunn to “review evidence, meet with the defendant, and possibl[y] find a resolution short
of trial,” the grant of the continuance was an abuse of the court’s discretion because the court
knew that Williams wished to proceed to trial rather than to accept a plea deal. He thus contends
that the continuance served a purpose that “Attorney Dunn did not need and that Mr. Williams

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did not want.” But the continuance was not entered solely to allow Dunn to seek a resolution
“short of trial” — it was also intended to allow Dunn to prepare for trial, in the eventuality that
there was one.
There is also no merit to Williams’s argument that the district court abused its discretion
by granting the motion to continue despite the absence of Williams’s signature on the motion.
The Speedy Trial Act does not require a defendant’s consent to stop the running of the speedytrial clock. United States v. Stewart, 628 F.3d 246, 254 (6th Cir. 2010). Furthermore, in his
motion for continuance, Dunn represented to the court that Williams had consented but merely
had not signed. Williams argues that the court abused its discretion nonetheless because it
should have recognized Williams’s desire for a speedy trial at that point and determined that
Williams had not willingly consented to a continuance. However, as discussed above, Williams
did not clearly state his desire for a speedy trial until November — two months after the
continuance was granted on August 18. All that the court knew when it granted the continuance
was that Williams wanted to go to trial, that he had expressed some concern about the length of
the continuance, and that Dunn required the continuance in order to adequately prepare for trial.
Under these circumstances, it was not an abuse of discretion for the court to conclude that the
ends of justice merited the granting of the continuance.
Failure to State Reasons
As noted above, under the Speedy Trial Act a court must detail its reasons for finding that
the ends of justice outweigh the best interests of the defendant and the public in a speedy trial
and must do so at least by the time it rules on a defendant’s motion to dismiss under the Act.
Zedner v. United States, 547 U.S. 489, 506-07 (2006). Ideally, a court should provide these
reasons “at or near the time it grants the continuance.” Id. at 507 n.7 (noting that this is the “best
practice”).
In this case, the district court did so. Although it provided no explanation for its decision
in the initial order granting the continuance, the court issued an amended order eight days later,
which read in relevant part:
Before the Court is a motion by the defendant for an ends of justice continuance
. . . . The basis of the motion is that additional time is necessary for defense

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counsel to review evidence, meet with the defendant and possibl[y] find a
resolution short of trial. If a resolution is not possible, additional time is
necessary for defendant to prepare a defense. The government does not oppose
the motion. The Court finds that the ends of justice served by the granting of a
continuance outweighs [sic] the best interest of the public and the defendant in a
speedy trial. NOW THEREFORE, pursuant to 18 U.S.C § 3161(h)(7)(B)(iv), an
ends of justice continuance is hereby entered.
Williams argues that because the court phrased its explanation as a restatement of the
defense counsel’s argument for the continuance, it did not satisfy the requirements of
§ 3161(h)(7)(A). However, in granting the continuance under § 3161(h)(7)(B)(iv) to allow a
“reasonable time necessary for effective preparation,” the court indicated that it found defense
counsel’s arguments credible and was granting the continuance in order to allow Dunn to gather
evidence and prepare for trial. We conclude that the district court did not abuse its discretion or
otherwise violate the Speedy Trial Act when it granted the August 18 continuance.
C. Ineffective Assistance of Counsel
Williams contends on appeal that his attorney was constitutionally ineffective for three
reasons: (1) counsel failed to file a motion to sever Williams’s case from that of his codefendant, Wilson, thus delaying progress of the case in getting to trial; (2) counsel requested an
unjustified continuance (namely, the August 18 continuance discussed above); and (3) counsel
failed to file a second motion for violations of the Speedy Trial Act after the first one was
denied.
Typically, we do not address ineffective-assistance-of-counsel arguments on direct
appeal, although we have done so when “the record is adequate to assess the merits of the
defendant’s allegations.” United States v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990). Otherwise,
we leave the defendant to the preferred mechanism of raising a claim of ineffective assistance of
counsel under 28 U.S.C. § 2255. In this case, Williams argues that “the evidence germane to
[his] ineffective assistance claim is already part of the district court record.” What Williams
refers to here are the numerous complaints he made during the progress of the case about the
deficiencies of his various lawyers. But the complaints do not provide material necessary to
review Williams’s claims.

They do not, for example, provide any information about why

Williams’s various lawyers chose to take the actions they took. Nor is there anything in the

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record to explain why Williams’s signature did not end up on the motion for a continuance that
Dunn filed on August 18. We would therefore have “no way of knowing whether a seemingly
unusual or misguided action by counsel had a sound strategic motive or was taken because the
counsel’s alternatives were even worse.” Massaro v. United States, 538 U.S. 500, 505 (2003).
Nor could we ascertain “whether the alleged error[s were] prejudicial.”

Id.

Without an

evidentiary hearing, it is simply not possible for us to properly determine whether Tilton, Dunn,
or Mitchell provided Williams constitutionally ineffective representation.
D. Career-Offender Sentencing
Finally, Williams challenges the district court’s decision to sentence him as a career
offender under USSG § 4B1.1(a), contending that the court incorrectly interpreted the relevant
provision in subsection (3) of that guideline, which provides that a defendant is a “career
offender” if he “has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” The district court classified Williams as a career offender on the
basis of a prior conviction for a felony controlled-substance offense and a prior conviction for
fourth-degree fleeing and eluding. This court held that the latter offense qualified as a “violent
felony” in United States v. Young, 580 F.3d 373, 379, 381 (6th Cir. 2009) (holding that the
defendant’s conviction of fleeing and eluding, second offense, Mich. Comp. Laws § 257.602a,
which, like fourth-degree fleeing and eluding, is punishable as a felony, qualifies as a violent
felony under the Armed Career Criminal Act).
Williams asserts that the court erred in counting his prior state conviction for fourthdegree fleeing and eluding as one of the two “prior felony convictions” necessary to qualify as a
career offender under § 4B1.1(a). As § 4B1.2(c) of the Sentencing Guidelines makes clear, in
order to count as one of the two “prior felony convictions” under § 4B1.1(a), the sentences for
the prior convictions must be “counted separately under the provisions of § 4A1.1(a), (b), or (c)”
— that is, they must add points to the defendant’s criminal history under one of those provisions.
Section 4A1.2(a)(2) of the Sentencing Guidelines in turn provides that, when a defendant is
sentenced to concurrent sentences of imprisonment and the sentences count as a single sentence
either because they (1) “resulted from offenses contained in the same charging instrument” or

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(2) were imposed on the same day,” only the longest sentence counts separately under the
provisions of § 4A1.1(a), (b), or (c).
Williams points out that on the same day he was sentenced for fourth-degree fleeing and
eluding, he received identical, concurrent sentences for possessing less than 25 grams of a
controlled substance and resisting a police officer, neither of which is a “crime of violence” for
federal sentencing purposes. He insists that, as a result, his fleeing-and-eluding conviction does
not “count separately” under the provisions of § 4A1.1(a), (b), or (c), and cannot constitute a
prior conviction for a crime of violence. In making this argument, Williams relies heavily on an
Eighth Circuit opinion, King v. United States, 595 F.3d 844 (8th Cir. 2010), in which the court
held that if there is ambiguity about which of several related sentences count under the
provisions of § 4A1.1(a), (b), or (c), the rule of lenity requires that the defendant receive the
benefit of the doubt.
The district court dismissed Williams’s rule-of-lenity argument because it led to a
“ridiculous result,” i.e., “that a . . . predicate that you would otherwise score is not scored
because [the defendant] got convicted of other crimes at the same time, which were not
predicates.” As Williams points out, however, in King, the Eighth Circuit reached the opposite
conclusion on similar facts. In that case, the defendant was sentenced as a career offender on the
basis of two prior, unrelated convictions for resisting arrest, which — standing alone — qualified
as crimes of violence. Id. at 3d at 844, 850-51. King appealed this sentence, arguing that
because his sentences for resisting arrest were imposed on the same day as, and ran concurrently
with, sentences for other, non-qualifying convictions, neither should count as a prior felony
conviction for purposes of § 4B1.1(a). The Eighth Circuit agreed. With respect to the first
resisting-arrest conviction, it reached this conclusion relatively easily because another sentence
for a non-predicate crime that was imposed at the same time as the sentence for resisting-arrest
exceeded it in length. Straightforwardly applying § 4A1.2(a)(2), the court concluded that it was
the other conviction, rather than the resisting-arrest conviction, that contributed points to King’s
criminal history pursuant to § 4A1.1(a). For that reason, the court concluded, the resisting-arrest
conviction did not count as a prior felony conviction. King, 595 F.3d at 849.

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The court found the status of the second resisting-arrest conviction more difficult to
determine because no other concurrent sentence exceeded the sentence imposed for resistingarrest. Instead, King received on the same day identical suspended sentences for resisting arrest
and for possessing a controlled substance, as well as a shorter, concurrent sentence for
possessing marijuana. Id. at 849-50. The court found that, because “King received equivalent
suspended sentences for the first [two convictions] . . . , it is unclear which should receive a
criminal history point. Either both of them are ‘the longest sentence of imprisonment,’ . . . or
neither is.”

Id. (quoting § 4A1.2(a)(2)).

The court ultimately concluded that, given this

ambiguity, the rule of lenity required that the non-predicate sentence for possessing a controlled
substance be considered the sentence that “counted separately under the provisions of
§ 4A1.1(a), (b), or (c)” because doing so would result in King serving a shorter sentence. King,
595 F.3d at 850-51 (quoting United States v. Oetken, 241 F.3d 1057, 1060 (8th Cir. 2001)
(“Where there are two plausible readings of a guideline provision, we apply the rule of lenity and
give the defendant the benefit of the reading that results in the shorter sentence.”)).
At sentencing, the district court rejected this argument and instead relied upon a Western
District of Kentucky opinion, United States v. Clark, 227 F. Supp. 2d 693 (W.D. Ky. 2002), one
that the King court considered and rejected. In the Clark opinion, the district court suggested
that it did not matter which of two identical concurrent sentence received points under
§ 4A1.1(a), (b), or (c), because even if a predicate “crime of violence” or “controlled substance
offense” did not count under those provisions, it would still merit a criminal history point under
what is now § 4A1.1(e) (then § 4A1.1(f)) and thereby qualify as a prior “crime of violence.” Id.
at 694-95. The problem with this reasoning is, of course, that the guideline specifies subsections
(a), (b), and (c), and does not include (e), even though subsection (e) clearly refers to the addition
of points for a “crime of violence.”
Unlike the Eighth Circuit, we discern no ambiguity requiring application of the rule of
lenity. Section 4B1.2’s requirement that “the sentences for at least two of the aforementioned
felony convictions [be] counted separately under the provisions of § 4A1.1(a), (b), or (c)” guards
against a specific type of sentencing bootstrapping, where a single criminal episode resulting in a
single sentence could satisfy the enhancement’s requirement of two predicate crimes. The

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USA v. Williams

guideline solves this problem by requiring the two predicate crimes to “count[] separately.”
Read in context, § 4B1.2 says nothing regarding the scoring of multiple crimes within a single
predicate episode.
Further, in our view § 4A1.2(a)(2)’s mandate that “if prior sentences are counted as a
single sentence, use the longest sentence of imprisonment if concurrent sentences were imposed”
for the purpose of assessing criminal history points results in no ambiguity for Williams to
exploit. The Eighth Circuit found this language ambiguous because “[e]ither both of [the
defendant’s equivalent sentences] are ‘the longest sentence of imprisonment,’ or neither is.”
King, 595 F.3d at 850 (internal citation omitted). We reject this interpretation as nonsensical. If
the district court were simply calculating Williams’s criminal history category, it would never
conclude that, simply because neither identical concurrent sentence is the “longest,” Williams
should be assessed no criminal history points at all.

Just so here.

Each of Williams’s

convictions, including his conviction for fourth-degree fleeing and eluding, independently
supports the assessment of criminal history points under § 4A1.1 (a), (b), or (c). Section 4B1.2
requires no more.
Our holding has the added advantage of avoiding the “ridiculous result” noted by the
district court. If we accepted Williams’s argument, he would evade career offender status
because he committed more crimes than the qualifying offense. Such a result cannot be squared
with Congress’s admonition that the Guidelines should “specify a term of imprisonment at or
near the maximum term authorized for” career offenders. 28 U.S.C. § 994(h).
Accordingly, we decline to find Williams’s sentence procedurally unreasonable under the
Guidelines.
III. CONCLUSION
For the reasons set out above, we AFFIRM the judgment of the district court.