United States v. Williams

Opinion

Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 12, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-6034 (D.C. No. 5:20-CR-00149-PRW-1) GREGORY YARNELL WILLIAMS, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT _________________________________

Before PHILLIPS, BALDOCK, and ROSSMAN, Circuit Judges. _________________________________

Gregory Yarnell Williams pleaded guilty to one count of possessing

methamphetamine with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(A), and one count of being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1). The district court initially imposed

 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. 32.1 and 10th Cir. R. 32.1.

 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 2

concurrent 284-month sentences on each count. Mr. Williams appealed, and

this court vacated the judgment and remanded for resentencing. See United

States v. Williams (Williams I), 48 F.4th 1125, 1128 (10th Cir. 2022). On

remand, the district court imposed a 272-month sentence for the drug count

and a 120-month sentence for the firearm count, again running concurrently.

On appeal, Mr. Williams argues his sentence is substantively unreasonable.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

The background facts are detailed in Williams I, 48 F.4th at 1128–32.

A summary suffices for this appeal.

A

In May 2020, investigators observed Mr. Williams pick up a package

flagged as suspicious by the United States Postal Inspection Service. Id. at

1128. A month later, investigators intercepted a different package

addressed to the same residence and discovered it contained suspected

methamphetamine in vacuum-sealed bundles. Id. at 1129. The

investigators repackaged the shipment for delivery, and law enforcement

officers subsequently observed Mr. Williams bring the package inside the

residence and leave in his SUV shortly thereafter. Id. Officers stopped the

SUV, arrested Mr. Williams, and obtained a search warrant for the

residence, where they found the resealed package, two scales, a heat sealer,

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a surveillance system, and a loaded revolver. Id. Subsequent testing showed

the intercepted package contained 1,222 grams of actual

methamphetamine. Id.

Mr. Williams was convicted after pleading guilty to one count of

possessing methamphetamine with intent to distribute in violation of 21

U.S.C. § 841(a)(1), (b)(1)(A), and one count of being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1). Mr. Williams’s advisory

Sentencing Guidelines range was 360 months to life imprisonment. The

district court granted a downward variance from the Guidelines range and

imposed concurrent 284-month sentences on each count.

This court vacated Mr. Williams’s sentence and remanded to the

district court to (1) make further drug-quantity findings regarding the § 841

violation and (2) resentence Mr. Williams on the § 922 violation without the

Armed Career Criminal Act enhancement.

B

On remand, the United States Probation Office filed a supplement to

the presentence investigation report (PSR). Probation calculated Mr.

Williams’s total offense level as 38:

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 Base Offense Level – § 841(a) violation1 36  Specific Offense Characteristics – § 2D1.1(b)(1) +2  Specific Offense Characteristics – § 2D1.1(b)(12) +2  Acceptance of Responsibility – § 3E1.1(a)2 -2  Total Offense Level 38 R.II at 48–50. At criminal history category VI, Mr. Williams’s Guidelines

range was 360 months to life.

Mr. Williams filed a sentencing memorandum requesting a downward

variance from the Guidelines range under 18 U.S.C. § 3553(a). As relevant

here, Mr. Williams urged the court to consider his good conduct since the

original sentencing, “including work in a UNICOR facility, educational

programming, and the lack of institutional misconduct sanctions.” R.I. at

211. He also pointed to data from the Judiciary Sentencing Information

1 The PSR supplement grouped the § 841(a) and § 922 counts under

U.S.S.G. § 3D1.2(c).

2 At the original sentencing, the government did not move for the additional one-level decrease pursuant to § 3E1.1(b). As the government explains in its Response Brief, the government declined to move for the additional one-level point decrease “[b]ased on a letter submitted to the district court in which Mr. Williams downplayed his involvement in the distribution of the drugs and claimed the firearm did not belong to him, that the house was not used for drug distribution, and that ‘this was a one time thing for methamphetamine.’” Resp. Br. at 6. 4 Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 5

(JSIN) database showing the mean length of imprisonment for similar

methamphetamine offenders3 is 240 months.

At the resentencing hearing, the district court initially calculated Mr.

Williams’s Guidelines range based on an offense level of 36 and a criminal

history category of VI, yielding a Guidelines range of 324 to 405 months of

imprisonment on the drug count and 120 months of incarceration on the

firearm count. After hearing arguments from Mr. Williams and the

government, the district court granted in part and denied in part the

downward variance.

The district court began by explaining why it originally imposed a

284-month sentence—the subject of the direct appeal in Williams I. That

sentence “wasn’t driven by the guideline range,” the district court

explained, “because it was . . . way below the guideline range.” R.III at 37.

Rather,

[the court] was largely concerned at the time about . . . the criminal history category of VI and that sort of continuous, but escalating conduct related to drug trafficking, the fact that Mr. Williams was kind of past the age that you would normally see aging out [of this type of criminal activity], and yet nothing was changing and the prior interventions just hadn’t

3 Mr. Williams maintained this data was specific to “individuals sentenced under the primary Guideline of § 2D1.1 for methamphetamine with a criminal history category of VI and who did not benefit from a substantial assistance motion under § 5K1.1.” R.I at 214. These metrics are not relevant to this appeal. 5 Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 6

seemed to do anything. So the sentence was really driven by that and [the court’s] concern about the need to protect the public.

R.III at 29. Still, the district court imposed a below-Guidelines sentence of

284 months “because just looking at [Mr. Williams’s] age, . . . . he’s going to

be quite an old man by the time he gets out.” R.III at 29. “[S]urely at that

point in his life,” the court reasoned, “he will be aged out of this conduct.”

R.III at 29. But the court “wanted to impose a sentence that wasn’t a life

sentence . . . . [t]hat wasn’t one where [Mr. Williams would think] that there

was no prospect on the other end” such that he would “give up” on bettering

himself while incarcerated. R.III at 37–38. The 284-month sentence, then,

was selected to be “long enough to protect the public from future crimes by

[Mr. Williams],” but “was not so lengthy as to make [Mr. Williams] give up

and think that [he is] never going to get out.” R.III at 38.

According to the district court, “[v]irtually nothing has changed”

since the original sentencing proceeding, and “[r]eally the only thing that’s

cutting in [Mr. Williams’s favor on resentencing] is . . . that [his] conduct

since being incarcerated has been good and [he has] taken advantage of

programming in an attempt to better [himself].” R.III at 38. The court

reasoned that “[not] a ton of credit” should be given to Mr. Williams for good

conduct while incarcerated, because “you should behave while

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incarcerated,” but the court “appreciate[d]” that Mr. Williams was taking

advantage of BOP programming. R.III at 38.

The district court sentenced Mr. Williams to prison for 272 months on

the drug count and 120 months on the firearm count, to run concurrently,

yielding a sentence one year shorter than the original sentence. The court

acknowledged that in coming to its resentencing decision, it “consider[ed]

the need to avoid unwarranted sentence disparities among similarly-

situated defendants.” R.III at 27.

Mr. Williams timely appealed.

II

“[A]ppellate review for reasonableness includes both a procedural

component, encompassing the method by which a sentence was calculated,

as well as a substantive component, which relates to the length of the

resulting sentence.” United States v. Smart, 518 F.3d 800, 803 (10th Cir.

2008). This appeal presents a single question following the remand in

Williams I: whether the 272-month sentence imposed by the district court

on resentencing is substantively unreasonable.

“[A] substantive challenge concerns the reasonableness of the

sentence’s length and focuses on the district court's consideration of the

§ 3553(a) factors and the sufficiency of the justifications used to support the

sentence.” United States v. Sanchez-Leon, 764 F.3d 1248, 1267 (10th Cir.

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2014) (quoting United States v. Lente, 647 F.3d 1021, 1030 (10th Cir. 2011)).

“When reviewing a sentence for substantive reasonableness, we focus on

‘whether the length of the sentence is reasonable given all the

circumstances of the case in light of the factors set forth in 18 U.S.C.

§ 3553(a).’”4 United States v. Cookson, 922 F.3d 1079, 1091 (10th Cir. 2019)

(quoting United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009)).

“A sentencing decision is substantively unreasonable if it ‘exceed[s] the

bounds of permissible choice, given the facts and the applicable law.’”

United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013)

(quoting United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007)).

“We review the substantive reasonableness of a sentence under a

deferential abuse-of-discretion standard.”5 United States v. Richards, 958

F.3d 961, 968 (10th Cir. 2020); see also Smart, 518 F.3d at 805 (“[I]t has

4 Under 18 U.S.C. § 3553(a), district courts are required to consider

seven factors in sentencing: “(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for a sentence to reflect the basic aims of sentencing, namely (a) just punishment (retribution), (b) deterrence, (c) incapacitation, and (d) rehabilitation; (3) the kinds of sentences available; (4) the Sentencing Commission Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarranted sentencing disparities; and (7) the need for restitution.” United States v. Cookson, 922 F.3d 1079, 1092 (10th Cir. 2019) (citation and quotation marks omitted).

5 This abuse of discretion standard applies regardless of whether the

sentence on review was imposed on sentencing or resentencing. See United States v. Maldonado-Passage, 56 F.4th 830, 841–42 (10th Cir. 2022). 8 Appellate Case: 23-6034 Document: 010110967046 Date Filed: 12/12/2023 Page: 9

been well settled that we review a district court’s sentencing decisions solely

for abuse of discretion.”). “We may not examine the weight a district court

assigns to various § 3553(a) factors, and its ultimate assessment of the

balance between them, as a legal conclusion to be reviewed de novo.” Smart,

518 F.3d at 808. “Instead, we must . . . . defer not only to a district court’s

factual findings but also to its determinations of the weight to be afforded

to such findings.” Id. “[I]n many cases there will be a range of possible

outcomes the facts and law at issue can fairly support . . . [and] we will defer

to the district court’s judgment so long as it falls within the realm of . . .

rationally available choices.” United States v. Durham, 902 F.3d 1180, 1236

(10th Cir. 2018) (quoting United States v. McComb, 519 F.3d 1049, 1053

(10th Cir. 2007)).

As Mr. Williams acknowledges, we apply a “rebuttable presumption

of reasonableness to a below-guideline sentence challenged by the

defendant as unreasonably harsh.” Richards, 958 F.3d at 968–69 (quoting

United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011)). A

“[d]efendant may rebut this presumption by demonstrating the sentence is

unreasonable when viewed against the factors described in § 3553(a).” Id.

at 969.

On appeal, Mr. Williams contends the district court gave insufficient

weight at his resentencing to three statutory sentencing factors. According

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to Mr. Williams, had the district court properly weighed the § 3553(a)

factors, it would have found the following factors favored a lower sentence:

(1) his history and characteristics, § 3553(a)(1); (2) his risk of recidivism,

§ 3553(a)(2); and (3) the need to avoid unwarranted sentence disparities,

§ 3553(a)(6). As we explain—and particularly given the deferential

standard of review—we cannot conclude the district court’s decision to vary

52 months below the Guidelines range was an abuse of discretion.

Mr. Williams first argues the district court “seemingly gave no

material weight to the terrible childhood that Mr. Williams endured,” citing

Mr. Williams’s childhood poverty and the “tough, gang-infested

neighborhoods” where Mr. Williams grew up. Opening Br. at 10.

As an initial matter, we acknowledge the record supports the claim

Mr. Williams endured a challenging childhood, and we have no reason to

conclude the district court was unaware of this aspect of Mr. Williams’s

history. The district court informed the parties that it had read “everything”

in advance of resentencing, which necessarily included the presentence

investigation reports and sentencing memoranda describing Mr. Williams’s

childhood adversities. But the district court further explained that a

particular aspect of Mr. Williams’s “history and characteristics”—namely,

his “significant criminal history”—“was the real driving factor in the

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[court’s] original sentence,” and on resentencing, “nothing has changed in

that regard.” R.III at 27, 30. Under these circumstances, we discern no

error. As we have explained, “[w]e may not examine the weight a district

court assigns to various § 3553(a) factors . . . de novo” but instead must

defer to a district court’s determination of the weight to be afforded to those

factors. Smart, 518 F.3d at 808. While the district court had the discretion

to grant Mr. Williams a downward variance based on his childhood, it did

not abuse its discretion by declining to do so.

Mr. Williams next argues the district court overestimated Mr.

Williams’s risk of recidivism and “fail[ed] to appreciate the likelihood that

a defendant like Mr. Williams would desist [from criminal activity] in his

50s or 60s.” Opening Br. at 11. He contends “the district court reasoned

that, if Mr. Williams has not aged out of crime by now, there is no reason to

believe he will desist his criminal behavior until he is in his mid-70s, . . . .

[b]ut this is not how recidivism works.” Opening Br. at 11. In support of this

contention, Mr. Williams points to empirical data purportedly indicating “a

significant proportion of defendants who continue to offend into their 40s

will stop such criminal behavior in their 50s or 60s.” Opening Br. at 11.

The empirical data marshalled by Mr. Williams on appeal was not

presented to the district court. See Resp. Br. at 18–19. We cannot say the

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district court abused its discretion by failing to consider evidence not

brought before it. Nor may we consider such evidence for the first time

ourselves. See United States v. Suggs, 998 F.3d 1125, 1141 (10th Cir. 2021)

(“[W]e are ‘a court of review, not of first view.’” (quoting Cutter v. Wilkinson,

544 U.S. 709, 718 n.7 (2005)); see generally United States v. Wilson, 839 Fed.

App’x. 269, 271 n.7 (10th Cir. 2021) (“Because Mr. Wilson’s letter was not

before the district court at the time that the court imposed Mr. Wilson’s

sentence, its contents cannot properly factor into our decisional calculus.”).

To the extent Mr. Williams argues generally that, given his age, the

sentence imposed was greater than necessary to protect the public from

further crimes, we see no reversible error. The district court observed “Mr.

Williams was . . . past the age that you would normally see aging out [of

criminal activity], and yet nothing was changing and the prior interventions

just hadn’t seemed to do anything.” R.III at 29. The district court

thoughtfully considered how best to weigh Mr. Williams’s risk of recidivism

alongside § 3553(a)’s mandate to “impose a sentence sufficient, but not

greater than necessary.” See R.III at 26 (describing the court’s “overarching

concern” as “impos[ing] a sentence that’s sufficient, but not greater than

necessary to comply with the purposes of sentencing.”); see also R.III at 33

(explaining the court “was thinking very much about how long does [Mr.

Williams] need to stay in” in light of his age and criminal history). The

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record shows the court was aware of its obligation to impose a parsimonious

sentence. See United States v. Martinez-Barragan, 545 F.3d 894, 904 (10th

Cir. 2008) (“When crafting a sentence, the district court must be guided by

the ‘parsimony principle’-that the sentence be ‘sufficient, but not greater

than necessary, to comply with the purposes’ of criminal punishment, as

expressed in § 3553(a)(2).” (quoting 18 U.S.C. § 3553(a))). Conducting the

balancing inquiry, the court reasoned “a very lengthy sentence [is]

necessary in light of [Mr. Williams’s] criminal history and [his] refusal to

give up criminal conduct, despite being given many, many chances.” R.III

at 37. On this record, we conclude the district court’s decision was one of

the “rationally available choices” before it. See Durham, 902 F.3d at 1236

(quoting McComb, 519 F.3d at 1053).

C

As for the need to avoid unwarranted sentencing disparities, Mr.

Williams contends the district court gave insufficient weight to the JSIN

data submitted at sentencing. Mr. Williams asserts, based on those

statistics, the average sentence for defendants “similarly situated to Mr.

Williams” is 240 months—many-months lower than the 272-month

sentence imposed by the district court on resentencing. Opening Br. at 12.

“It is unquestionably true that under § 3553(a)(6), a sentencing court

must consider ‘the need to avoid unwarranted sentence disparities among

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defendants with similar records who have been found guilty of similar

conduct.’” United States v. Garcia, 946 F.3d 1191, 1214–15 (10th Cir. 2020)

(quoting 18 U.S.C. § 3553(a)(6)). Here, the district court acknowledged “the

need to avoid unwarranted sentence disparities among similarly-situated

defendants” in explaining its consideration of the § 3553(a) factors, though

it did not reference the JSIN data. R.III at 27. Mr. Williams accurately

describes the JSIN data; at the time of Mr. Williams’s resentencing, it

showed defendants with a total offense level of 36 and a criminal history

category of VI were sentenced on average to 240 months for trafficking

methamphetamine. But recall, the court observed it was “concerned . . .

about . . . this sort of continuous, but escalating conduct related to drug

trafficking . . . past the age that you would normally see aging out [of this

conduct].” R.III at 29.

The national JSIN statistics cited by Mr. Williams, without more, did

not account for—and could not alone resolve—the district court’s expressed

apprehensions in this case. See Garcia, 946 F.3d at 1215 (“[Appellant’s] bare

national statistics do not shed light on the extent to which the sentences

that the statistics pertain to involve defendants that are similarly situated

to [Appellant] . . . . notably, whether those defendants have been involved a

similar longstanding pattern of . . . serious lawbreaking, which not

infrequently involved unlawful possession of inherently dangerous

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firearms.”). Particularly considering the § 3553(a) factors “in light of the

‘totality of the circumstances,’” United States v. Sayad, 589 F.3d 1110, 1118

(10th Cir. 2009) (quoting Gall v. United States, 522 U.S. 38, 51 (2007)), and

mindful of the district court’s concerns expressed on this record, we reject

Mr. Williams’s argument based on the JSIN data. The sentence imposed

here—which is below Guidelines and presumptively reasonable—falls

squarely within the range of outcomes permitted by the facts and the law.

See Durham, 902 F.3d at 1236; Richards, 958 F.3d at 968–69.

III

The judgment of the district court is AFFIRMED.

ENTERED FOR THE COURT

Veronica S. Rossman Circuit Judge