United States v. Edwin W. Williams

408 F.3d 745, 2005 U.S. App. LEXIS 7906, 2005 WL 1058931
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 6, 2005
Docket04-10717
StatusPublished
Cited by48 cases

This text of 408 F.3d 745 (United States v. Edwin W. Williams) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Edwin W. Williams, 408 F.3d 745, 2005 U.S. App. LEXIS 7906, 2005 WL 1058931 (11th Cir. 2005).

Opinion

PER CURIAM:

Edwin W. Williams appeals his concurrent 262-month sentences imposed after he pled guilty .to six counts of commercial business robbery, in violation of 18 -U.S.C. § 1951. Because we have determined that Williams failed to establish plain error in his sentence enhancement for brandishing or possessing a gun during the robberies or- clear error in the denial of a downward departure for acceptance of -responsibility, we AFFIRM.

I. BACKGROUND

According to the presentence investigation report (“PSI”), Williams committed six robberies of fine jewelry counters at Dillard’s, Sears, Rich’s and Belk stores in malls in Savannah, Georgia. 1 In five out of the six robberies, the victim sales clerk behind the jewelry counter stated that Williams possessed a firearm when he robbed the jewelry counter. All six vic *747 tims reported that Williams threatened to shoot or kill them.

In an interview with a probation officer following his pleading guilty, Williams stated that he did not possess a firearm during the robberies but admitted that, during one of the robberies, he placed his hand in a black bag, which might have appeared to be a gun. He also stated that he never threatened to shoot or kill anyone. Williams pled guilty to six counts of robbery of a commercial business in violation of 18 U.S.C. § 1951. 2 At the plea colloquy, Williams admitted to the essential elements of his offenses, but he maintained that he did not have or display a gun at any of the robberies.

The probation officer calculated Williams’s base offense level at 20 for each of the six counts, pursuant to U.S.S.G. § 2B3.1(a) (2003). The officer increased this base offense level by 5, pursuant to § 2B3.1(b)(2)(C), for Counts One-Three and Five-Six, since Williams brandished or possessed a firearm during those robberies as attested by the victim sales clerks. The probation officer also increased Williams’s base offense level by 2 for all counts, pursuant to § 2B3.1(b)(7)(C), since the fair market value of the merchandise stolen was more than $50,000. For Count Four, the probation officer increased the base offense level by 2, pursuant to § 2B3.1(b)(2)(F), because Williams issued a threat of death to the victim sales clerk during that robbery. Because the probation officer calculated the offense level cumulatively without counting any enhancement more than once for all six counts, the combined adjusted total offense level was 32. The officer also found that Williams was not entitled to a reduction for acceptance of responsibility because his denial of possessing a firearm amounted to a false denial of relevant conduct. The probation officer additionally classified Williams as a career offender under U.S.S.G. § 4Bl.l(a). With an offense level of 32 and a criminal history category of VI, Williams’s applicable sentencing range was 210 to 262 months of imprisonment. U.S.S.G. Ch. 5, Pt. A.

Williams objected to the five-level enhancement under § 2B3.1(b)(2)(C) in his offense level for possession of a firearm as well as the denial of a reduction in his offense level for acceptance of responsibility under § 3E1.1 for falsely denying his possession of a firearm. He argues that his offense level should have been 29 instead of 32, which would have yielded 151 to 188 months of imprisonment. At sentencing, the district judge found that Williams had used a firearm during the subject robberies based on the evidence of (1) two credible witnesses, victim sales clerks who had testified that Williams had a gun during their respective robberies, R2 at 23; (2) a videotape of a subsequent robbery of a jewelry counter within a store showing that Williams had a gun, id. at 23-24; (3) Williams’s prior convictions for armed robbery, id.; and (4) his possession of a gun at his arrest like the one “described by two very credible witnesses,” id. at 24. The district judge determined that, because Williams had used weapons during the subject robberies, as the victim *748 sales clerks attested, he was not entitled to a reduction for acceptance of responsibility. Considering the counts cumulatively, the judge sentenced Williams to a-concurrent sentence of 262 months of imprisonment.

On appeal, Williams argues that the district court erred when it sentenced him based on his using a firearm during the robberies to which he pled guilty because that fact was not admitted by him or proved to a jury. Therefore, he argues that his sentence was impermissible according to the law established in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403(2004). Williams did not raise this issue in district court. He also argues on appeal that the district court erred by refusing to grant him a reduction for acceptance of responsibility, since he pled guilty to all counts.

Because Williams’s Apprendi/Blakely issue implicated the constitutionality of the United States Sentencing Guidelines and the Supreme Court now has decided United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we requested that counsel file supplemental briefs concerning the applicability of the Sentencing Guidelines in this case under the plain-error review standard. We have considered counsel’s responsive briefs and now explain our decision in view of Booker.

II. DISCUSSION ,

A. Enhancement for Gun Possession During the Robberies

Williams first argues that the district court erred by enhancing his sentence under § 2B3.1(b)(2)(C) for brandishing or possessing a firearm during the robberies. Since Williams did not make this objection in district court, our review is for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005), cert. denied, — U.S. -, 125 S.Ct. 2935, — L.Ed.2d-, 73 U.S.L.W. 3531 (U.S. Jun. 20, 2005) (No. 04-1148). Under this review standard, we can correct an error only if there was “ ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’ ” Id. (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002)). The defendant has the burden of persuasion as to prejudice regarding the third part of the analysis. Id. at 1299. Provided these three conditions are met, we have discretion to correct a forfeited error “ ‘only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. at 1298.

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Bluebook (online)
408 F.3d 745, 2005 U.S. App. LEXIS 7906, 2005 WL 1058931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-edwin-w-williams-ca11-2005.