United States v. Antawan Williams

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 13, 2021
• Docket: 20-1644
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0239n.06ID

Case No. 20-1644

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) May 13, 2021 UNITED STATES OF AMERICA ) DEBORAH S. HUNT, Clerk ) Plaintiff - Appellee, ) ) v. ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE ) ANTAWAN WILLIAMS, WESTERN DISTRICT OF MICHIGAN ) ) Defendant - Appellant. )

BEFORE: GIBBONS, KETHLEDGE, and MURPHY, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Antawan Williams contests the procedural and

substantive reasonableness of his 72-month sentence for possession of fentanyl with intent to

distribute, a 15-month variance above the sentencing guidelines range. Because the district court

did not abuse its discretion in selecting the sentence, we affirm.

I.

Police arrested Antawan Williams in 2019 and found cash and drugs on his person. When

tested, the drugs turned out to be fentanyl and other controlled substances. In Williams’s

apartment, police found digital scales with cocaine residue, narcotics packaging, cash, three

firearms (at least one of which was loaded), and ammunition. Williams was charged with

possession of fentanyl with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C),

and being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2). Williams agreed to plead guilty in exchange for the government’s agreement to dismiss Case No. 20-1644, United States v. Williams

the firearms count. However, the plea agreement stated that the district court could consider the

dismissed count in sentencing, including when determining “the propriety of any departure from

the calculated guidelines range.” DE 42, Plea Agmt., Page ID 111.

The presentence report determined that Williams’s offense level was 26 and his criminal

history category was VI. His criminal history included two state convictions for possessing

firearms as a felon, various drug convictions, and probation and parole violations. Williams

objected to the offense level calculation, arguing that there was insufficient evidence to sustain

enhancements for cocaine possession and maintaining a drug house. The district court sustained

both objections and granted a two-level reduction for acceptance of responsibility. The

recalculated offense level was 16, yielding a recommended sentencing range of 46 to 57 months.

Before allocution, the district court said that “even though those are the guideline rulings

and that is now the place we start,” it questioned “whether that fairly represents the overall

seriousness of the offense conduct . . . particularly related to the firearms.” DE 65, Sent. Tr., Page

ID 424. In the court’s “view[,] the firearms associated with this offense and the possession of

those things by Mr. Williams is much more serious than the provable activity on the drugs.” Id.

The district court noted that the recommended sentencing range for the dismissed firearms count

given Williams’s criminal history would have been 100 to 125 months, and while that was

“[c]leary not the guideline range,” it was “one of the ways” the district court would measure “the

overall seriousness of the [drug] offense, which is one of the 3553 factors.” Id. at 425.

Defense counsel argued that the district court should grant a downward variance for

numerous reasons: (1) the government unfairly refused to move for a third point reduction for

acceptance of responsibility; (2) Williams believed he possessed heroin, not fentanyl;

(3) Williams’s criminal history was a category VI “by one point”; (4) he was on parole for only

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part of the time of the offense; (5) Williams “had a somewhat troubled life,” including problems

with substance abuse; (6) he had a good employment history; and (7) he desired to provide care

for his young child who had sickle cell disorder and whose mother also had health problems.

Williams spoke and apologized to the court for his actions. He also asked the district court to

consider the time he had already spent in prison or to delay the imposition of his sentence until

after the mother of his child recovered from a medical procedure. The government urged the court

to deny the request for a downward variance and to consider all relevant conduct, including the

firearms possession, when determining the sentence.

In selecting the appropriate sentence, the district court stated that its two primary

considerations were “the overall seriousness of the offense, particularly the firearms conduct” and

“the repetitive nature of Mr. Williams’[s] law breaking.” Id. at 439. The court said that the record

was not clear as to whether Williams’s drug activity was “much more extensive than you could

account for just on the drugs located on Mr. Williams’[s] person,” or whether “it was a more

limited dealing triggered at least in part by Mr. Williams’[s] own substance-abuse issues.” Id. The

district court noted that Williams did not “have a prior drug-distribution conviction for the kinds

of drugs involved here.” Id. at 440.

The district court pointed out that this was the third time that Williams had been caught

with firearms as a convicted felon, behavior the district court viewed as “escalating” given that

one of the firearms found in the search was stolen and another was a semiautomatic with a large-

capacity magazine. Id. at 440–41. The district court also noted that Williams kept the firearms in

a house he shared with his then-pregnant girlfriend, which was “a recipe for trouble and serious

danger and even death.” Id. at 440.

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The district court also considered Williams’s criminal history, stating that it was a “serious

concern” that the message that Williams could not possess firearms had not “gotten through.” Id.

The district court said that the criminal history score was category VI “because of the series of

violations,” including “[v]iolations while on parole or on supervision for other criminal

convictions.” Id. at 441. The district court decided against a downward variance based on that

history. Id.

The district court reiterated that it felt that “the overall seriousness of what happened here”

was not reflected in the 46- to 57-month range, stating that it intended to vary upward. Id. at 442.

In determining the sentence, the district court stated that it thought that “the government [wa]s

being a little stingy on the third point” for acceptance of responsibility and would take that into

consideration, balanced against “the seriousness of the comparative gun activity and the repetitive

violations on probation and on parole.” Id. at 443. The court also stated that the drug activity did

not drive “the overall seriousness of the provable offense conduct.” Id. In the court’s view, an

upward variance was needed

for Mr. Williams to get the message finally that if he wants to live that life in the community that we all hope for him, work in a law-abiding job, which he’s obviously capable of doing, he’s demonstrated that, use the intelligence he obviously has, whether in construction or something else, get a job that can, you know, carry insurance so that he can take care of the undoubted medical problems that sadly will accompany his daughter’s life with sickle cell, that’s a painful and difficult condition, those are things that he can do.

Id. at 442. The district court determined that when “put[ting] it all together, the factors that are for

and against Mr. Williams, . . . a guideline sentence here . . . would be too low,” but “a sentence of

72 months custody . . . is a fair reflection of the overall offense conduct including the relevant

conduct of the firearms associated with the offense,” which the court viewed as “the most serious

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conduct in the case.” Id. at 443. The district court declined to allow Williams to self-surrender on

a future date because he was already in custody for parole violations.

Defense counsel did not object to the sentence when prompted by the district court, but

toward the end of the hearing Williams said that he felt that the sentence was “unfair” because the

guidelines range already accounted for his criminal history. Id. at 450. The district court replied

that it had explained its reasons for the sentence and did not “need to add to the record,” but that

Williams could address the sentence on appeal. Id. Williams then filed a timely notice of appeal.

II.

On appeal, Williams contests the procedural and substantive reasonableness of his

sentence. “We determine reasonableness under the deferential abuse-of-discretion standard.”

United States v. Byrd, 689 F.3d 636, 639 (6th Cir. 2012) (citing United States v. Stubblefield, 682

F.3d 502, 510 (6th Cir. 2012)). The government argues that we should review the sentence instead

for plain error because Williams failed to object to the sentence before the district court. Although

the government is correct that Williams did not object at the first opportunity, he did inform the

district court that he thought his sentence was “unfair” because much of the conduct justifying the

variance was already counted in his guidelines range. We need not decide whether this statement

can be read as objecting to the reasonableness of the sentence, however, because Williams’s

arguments fail under even the more forgiving abuse of discretion standard. For the reasons we

discuss, Williams’s sentence was both procedurally and substantively reasonable.

A.

“[I]n reviewing sentences for procedural reasonableness we must ensure that the district

court: (1) properly calculated the applicable advisory Guidelines range; (2) considered the other

§ 3553(a) factors as well as the parties’ arguments for a sentence outside the Guidelines range; and

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(3) adequately articulated its reasoning for imposing the particular sentence chosen, including any

rejection of the parties’ arguments for an outside-Guidelines sentence and any decision to deviate

from the advisory Guidelines range.” United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007).

“If the district judge decides to depart from the advisory Guidelines range, ‘he must consider the

extent of the deviation and ensure that the justification is sufficiently compelling to support the

degree of the variance.’” Id. at 580 (quoting Gall v. United States, 552 U.S. 38, 50 (2007)).

“Likewise, the record must contain the district court’s rationale for concluding that the sentence

imposed is ‘sufficient but not greater than necessary, to comply with the purposes’ of sentencing

set forth in 18 U.S.C. § 3553(a).” Id. While “[t]he record must reflect that the district court

considered all of the § 3553(a) factors,” “the district court need not explicitly reference each of the

§ 3553(a) factors in a ritualistic incantation.” United States v. Wallace, 832 F. App’x 949, 954

(6th Cir. 2020) (internal citations and quotations omitted).

Williams argues that the district court “never explained its reasons for the specific sentence

it imposed.” CA6 R. 15, Appellant’s Br., at 19. But that argument is belied by the record. Before

allocution, the court stated that it might vary upward from the guidelines range because the court

doubted that the range “fairly represents the overall seriousness of the offense conduct . . .

particularly related to the firearms.” DE 65, Sent. Tr., Page ID 424. The district court gave the

government and Williams an opportunity to explain their positions on the appropriate sentence,

and then the court reiterated that it felt the guidelines range did not reflect “the overall seriousness

of what happened.” Id. at 442. The court explained that its two primary considerations were “the

overall seriousness of the offense, particularly the firearms conduct” and “the repetitive nature of

Mr. Williams’[s] law breaking.” Id. at 439. The court stated that it was a “serious concern” that

the message that Williams could not possess firearms had not “gotten through.” Id. at 440. The

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court viewed the firearms conduct as “escalating” in light of his prior firearms convictions and

particularly dangerous given that his then-pregnant girlfriend lived in the house (and his child lives

there now as well). Id. at 440–41. The court also pointed out that Williams’s criminal history was

category VI, the highest possible level, “because of [a] series of violations,

including . . . [v]iolations while on parole or on supervision for other criminal convictions.” Id. at

441.

The district court also considered mitigating factors that meant that the sentence did not

need to be as high as it “would be if the gun conviction had been the scored one.” Id. at 442. The

court said that it would consider its belief that “the government [wa]s being a little stingy on the

third point” for acceptance of responsibility, as well as Williams’s substance-abuse issues, the fact

that Williams did not “have a prior drug-distribution conviction for the kinds of drugs involved

here,” and his need to care for his daughter. Id. at 440, 442–43.

The district court determined that when “put[ting] it all together, the factors that are for

and against Mr. Williams, . . . a guideline sentence here . . . would be too low,” but “a sentence of

72 months custody . . . is a fair reflection of the overall offense conduct including the relevant

conduct of the firearms associated with the offense,” which the court viewed as “the most serious

conduct in the case.” Id. at 443.

“In short, as required by our procedural reasonableness jurisprudence, the district court

engaged in its own evaluation of the § 3553(a) factors and utilized its discretion to vary from the

Sentencing Commission’s recommendations.” Bolds, 511 F.3d at 582. Given “the district court’s

careful consideration of the § 3553(a) factors and thorough explanation of its reasons for imposing

a [72] month sentence, we do not consider [Williams’s] sentence to violate the requirements of

procedural reasonableness.” Id.

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B.

“Sentences imposed within a properly-calculated Guidelines range enjoy a rebuttable

presumption of substantive reasonableness on appeal.” United States v. Baker, 559 F.3d 443, 448

(6th Cir. 2009). But “[a]t the same time, a sentence falling outside the guidelines range is not

presumptively unreasonable.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). We

have held that a sentence may be substantively unreasonable when the district court selects it

“arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing

factors, or gives an unreasonable amount of weight to any pertinent factor.” Id. Generally, “we

must give ‘due deference’ to the district court’s conclusion that the sentence imposed is

warranted,” and the fact that we “might have reasonably concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.” Bolds, 511 F.3d at 581 (quoting

Gall, 522 U.S. at 51).

Williams argues that the district court inappropriately considered his criminal history in

granting an upward variance, which he says was already factored into the sentencing guidelines.

“At the outset, we note that members of our Court disagree over whether challenging the district

court’s consideration of an improper factor is a substantive or procedural challenge.” United States

v. Fowler, 956 F.3d 431, 440 n.1 (6th Cir. 2020) (collecting cases). But whether this issue is

procedural or substantive, “our case law permits a sentencing court to consider a defendant’s

criminal history in its analysis of the 18 U.S.C. § 3553(a) factors, even when the defendant’s

guidelines range already reflects it.” United States v. Lee, 974 F.3d 670, 677 (6th Cir. 2020).

The circumstances in which we have cautioned against “double counting” a defendant’s

criminal history are not present here. For instance, we held that the upward variance in Lee was

an abuse of discretion because it “nearly doubled” the defendant’s sentence, and there was no

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“meaningful relationship between the offense of conviction and the defendant’s alleged likelihood

of reoffending” because the defendant had no prior firearms convictions. Id. By contrast, the

variance here was about 25 percent above the top end of the guidelines range. And unlike the

defendant in Lee, Williams had two prior firearms convictions. The district court was also

concerned that Williams’s conduct was part of an “escalating” pattern because the instant case

involved multiple firearms, one of which was a “semiautomatic with a large-capacity magazine,”

and one of which was stolen. DE 65, Sent. Tr., Page ID 440–41.

We upheld a near-identical variance in United States v. Arnold, 838 F. App’x 985 (6th Cir.

2021). There, the recommended guidelines range for the drug offenses at issue was also 46 to 57

months. Id. at 986. The district court likewise sentenced the defendant to 72 months’

imprisonment, an upward variance of 15 months. Id. We concluded that the sentence was

substantively reasonable because the district court determined that it was necessary “to ‘protect

the public from Mr. Arnold dealing more drugs’ and that he ‘seems to keep doing the same thing

that lands him in this court.’” Id. at 989. Likewise, the district court here stated that it was a

“serious concern” that the message that Williams could not possess firearms had not “gotten

through,” and an upward variance was necessary for “Williams to get the message.” DE 65, Sent.

Tr., Page ID 440, 442.

Williams also argues that the district court gave “excessive weight” to the firearms

possession, which he says “presented no significant danger.” CA6 R. 15, Appellant’s Br., at 12–

14. He argues that the government did not view the firearms possession as particularly dangerous

because the government agreed to dismiss the firearms charge in the plea agreement. But the

district court determined that the firearms presented a “serious danger” based on the type of one

of the weapons, the fact that at least one was loaded, and the presence of the firearms in a home

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with Williams’s girlfriend. DE 65, Sent. Tr., Page ID 440. We have no basis for disturbing those

factual findings. Additionally, it was clear from the plea agreement that the district court would

be permitted to consider the firearms conduct in crafting a sentence, including “the propriety of

any departure from the calculated guidelines range.” DE 42, Plea Agmt., Page ID 111. The district

court did not unduly weigh the firearms conduct in applying a 15-month variance.

III.

The sentence imposed by the district court was both procedurally and substantively

reasonable. We therefore affirm.

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